Langley & Bramble

FAMILY COURT OF AUSTRALIA

LANGLEY & BRAMBLE

[2008] FamCA 437

FAMILY LAW – CHILDREN – with whom a child lives – best interests of child

FAMILY LAW – PROPERTY – Alteration of property interests

Family Law Act 1975 (Cth)

APPLICANT:

Ms Langley

RESPONDENT:

Mr Bramble

FILE NUMBER:

PAF

370

2006

DATE DELIVERED:

16 June 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Watts J

HEARING DATE:

19 – 22 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schroder

SOLICITOR FOR THE APPLICANT:

Claire Legal

COUNSEL FOR THE RESPONDENT:

Mr Juhasz

SOLICITOR FOR THE RESPONDENT:

Lamrocks

Orders

Parenting

All previous parenting orders be discharged.
The husband and wife do all things necessary so that the child born … March 2005 (“[the child”) is known by the surname Langley-Bramble and both parties equally share any costs involved to effect the change of name.
The husband have sole parental responsibility for the child.
In the event that the husband intends to make any significant or long term decision in relation to the child’s education or health, then he will notify the wife in writing of what he is considering proposal and give the wife an opportunity to respond with her opinion in writing before the husband makes a decision about such a matter.
The child live with her father.
For the purposes of Order 5 above, the child is to live with the father as follows:-
6.1.From 9.30am on the next Saturday in which the husband would normally spend time with the husband to 9.30am on Sunday.
6.2.On the following Saturday from 9.30am to 5.00pm Sunday;
6.3.On the following Saturday from 9.30am to 5.00pm Monday;
6.4.On the following Saturday from 9.30am to 5.00pm Tuesday;
6.5.On the following Saturday from 9.30am to 5.00pm Wednesday;
6.6.On the following Saturday from 9.30am to 5.00pm Thursday;
6.7.On the following Saturday from 9.30am to 6.00pm Friday;
6.8.For the purpose of Order 6.1 to 6.7 above, the wife is to spend time with the child when the child is not living with the husband.
After the period referred to in Order 6.8, the child is to spend time with her mother as follows:-
7.1.Each alternate weekend from 6.00pm Friday to 5.00pm Sunday during school terms;
7.2.Each Christmas school holidays for the second half and in each even numbered year from 3.00pm Christmas Eve to 5.00pm Christmas Day and in each odd numbered year from 3.00pm Christmas to 5.00pm Boxing Day;
7.3.On Mother’s Day if it is not a time when the child would be with her mother pursuant to Order 7.1, from 9.30am to 5.00pm on Mothers’ Day;
7.4.If the child’s time with her mother pursuant to Order 7.1 falls on Father’s Day then contact shall be suspended on Father’s Day from 9.30am to 5.00pm.
7.5.On the child’s birthday from 4.00pm to 8.00pm if the child’s birthday is on a weekday or any day of a weekend when the child is not scheduled to spend time with her mother on that weekend;
7.6.If the child’s birthday is on a weekend that the child is to spend time with her mother then that time will be suspended from 1.00pm until 5.00pm and the child is to be with her father during this time;
7.7.Until the child commences at school, a block period of eight days from 9.30am Saturday until 5.00pm the following Sunday each three months, provided the wife gives the husband at least four weeks written notice;
7.8.Once the child has commenced at school for one week each school holidays except Christmas holidays from 9.30am on the first Saturday of the school holidays to 9.30am on the following Saturday.
7.9.Such other contact as mutually agreed between the parties.
At any time when the child is to go from one parent to the other, changeover for the child is to take place, during the period provided for in Order 6 above at Central West Contact Service, and thereafter at times provided in Order 7 at a McDonalds at a reasonably equal distance from the home of both parents.
In the event the parties are unable to agree on which venue is appropriate, then either party shall be at liberty to apply on seven days notice for a determination about that matter.
Both parties be restrained from denigrating the other.
The husband is to authorise the school attended by the child to provide to the wife copies of all school reports, newsletters, information relating to school photographs and events to which parents can attend and any other information relating to the child.
The husband is to notify the wife in advance of any specialist medical, counselling, assessment or other special treatment for the child in advance and is to authorise whoever provides such treatment to release to the wife all information relating to the treatment.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property

Pursuant to s.79 of the Family Law Act 1975 (“the Act”) an order be made in the terms of paragraphs 15 - 24 below.
Within two months of the date of these orders the wife pay to the husband the sum of $50.091.00.
Within two months of the date of these orders the husband sign all documents and instruments and do all things necessary to transfer to the wife the whole of his right, title and interest in the former matrimonial home at S in the State of New South Wales being the land in Certificate of Title Folio Identifier Lot … DP … (“the property”) and from the date of these orders the wife be solely responsible as between the husband and wife for all outgoings payable in relation to the property and the wife indemnify the husband in relation to all and any such payments (including any outstanding arrears).
Simultaneously with the transfer referred to in paragraph 16 the wife sign all documents and do all things necessary to discharge the mortgage to the ANZ Bank secured over the property (“the mortgage”) so as to release the husband from all liability.
In the event that the wife fails to pay the sum referred to in paragraph 14 or secure the discharge referred to in paragraph 16 within two months from the date of these orders, then the parties do all acts and execute all documents necessary to sell the property at S in the State of New South Wales by private treaty at a price as agreed between the parties and failing such agreement at a price nominated by the president, for the time being, of the Real Estate Institute of New South Wales or his/her nominee.
If the sale of the property has not been completed within three months of being placed on the market to be sold by private treaty, the parties do all acts and things and execute all documents necessary to place the property on the market by public auction at a reserve price as agreed between the parties and failing such agreement at a reserve price as set by the president, for the time being, of the Real Estate Institute of New South Wales or his/her nominee, such public auction to be held within two months of the property being listed to be sold by auction.
The parties do all acts and execute all documents to cause the proceeds of the sale of the said property to be used as follows:-
20.1.To pay the reasonable expenses of the sale including agent’s commission and legal costs and disbursements and auction expenses (in the event of an auction);
20.2.To discharge the mortgage secured on the property;
20.3.To pay 19% of the sum then remaining to the husband;
20.4.To pay the remainder to the wife.
The wife will indemnify the husband in relation to any loan outstanding to the wife’s father and any loan in respect of her Visa card.
Except as otherwise provided in these orders the husband and wife are entitled to the sole legal and beneficial owners of all items of property including money, motor vehicles, insurances, equity, superannuation entitlements and personal effects currently in their possession or control subject to these orders with each of them respectively.
The husband be solely entitled to the dog.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Parramatta Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Act to execute such documents on behalf of such party.
Each party have liberty to apply in relation to the implementation of these orders.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 370 of 2006

Ms Langley

Applicant

And

Mr Bramble

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This matter mainly is about what time the parties’ daughter, who was born in March 2005, will spend with both her parents. The wife asserts that there is an unacceptable risk in relation to the child being sexually abused or exposed to inappropriate sexual activity in the husband’s household. She also asserts that there has been a history of aggressive behaviour which culminated in an event involving family violence on 30 November 2005, which was a significant focus of the evidence at the hearing. The wife has changed her surname to Langley and now wants the child to be known as the hyphenated surname Langley-Bramble. The husband opposes that change of name.
The parties also ask me to make orders altering their property interests. There was no significant cross examination of either party on any issue relating to their property. The wife wants the dog returned to her.

APPLICATIONS

Wife

In her case outline document the wife sought the following orders:-
Parenting
1.That the child […] born […] March 2005 live with the mother.
2.That the mother have sole parental responsibility for [the child].
3.That the father have supervised time with [the child] as arranged with the Blacktown Contact Centre
4.Within seven days each party contact Blacktown Contact Centre […] and each party attend an initial interview / intake assessment.
5.That the father and Mother pay any fees for the Supervision of each occasion of the father’s time.
6.That the father complete full attendance to the following courses.
(a)Men, Anger & Family Relationships; through the Anglican Church.
(b)Swinson Cottage – Swinson Rd Blacktown - Triple P course or the 1,2,3, Magic course.
(c)Anger wise and c.a.l.m. anger management class
(d)Parent effectiveness training
7.That the father be restrained from going within 50 metres of the residence of the mother, entering upon or loitering in the vicinity of the said property and be restrained from going within 50 meters of the mother.
Financial
8.That within two months of the said date that these orders the wife pay to the husband the sum of $10,887
9.That within two months from the date these orders the husband sign all documents and instruments and do all things necessary to transfer to the wife the whole of his right title and interest in the former matrimonial home property [S property] in the state of New South Wales being the land in contained in Certificate of title Folio Identifier Lot […] DP […] (“the property”) and from the date of these orders the wife be solely responsible as between the husband and the wife for all outgoings payable in relation to the property and the wife indemnify the husband in relation to all and any such payments.
10.Simultaneous with the transfer referred to in clause 9 the wife sign all documents and do all things necessary to discharge the mortgage to the ANZ Bank secured over the property (“the mortgage’) so as to release the husband from all liability.
11.That the wife be solely entitled to the Dog known as […] and within seven days the husband provide the dog to the wife, together with the dog pool.
12.That the wife be solely entitled to the following items and within seven days the husband provide the items, undamaged and in working order, to the wife or pay to the wife $30,000
·Child toy piano
·Spa
·Kick boxing CD ( belonging to wife’s brother)
·Trailer (Belonging to wife’s father – or completed payment of $2,000 to father)
·Tools to the value of $2000 (Belonging to wife’s father)
·Wife’s vocational resume and certificates
·Wife’s full identification and personal papers including tax paper
·Wife’s personal photographs, letters and cards,
·Wife’s passport
·Wife’s mother’s `Funeral book’, and funeral photo’s
·Children medical information.
·Child photograph folder and memorabilia
·Children’s computer games
·Video of the child in the womb
·Video of child mother and mother’s father on [news programme].
·Child music CD
·Lounge suite
·Fireplace gas heater
·Drop saw – (Wife’s tools)
·Electric drill (Wife’s tools)
·Stud finder (wife’s tools)
13.The Court notes: that pursuant to section 81 of the Family Law Act (1975) the parties intend that these orders shall finally determine their financial relationship [sic] avoid further proceedings between them in relation to the property settlement.
Change of name
14.That both parties sign all necessary documents to have the [sur]name of [the child] changed to [Langley-Bramble] and both parties equally share the cost of that procedure.
In final submissions Counsel for the wife changed the figure the husband sought in Order 8 from $10,887 to $16,837.
During the hearing the wife added that she sought that the husband have contact with the child for one to two hours each fortnight supervised by the Blacktown Contact Service, and for such purposes, contact take place at such times as nominated by the contact centre in consultation with the parties.
She also sought the following additional orders:
7A.That upon [the child] attaining the age of 6 years the father and mother agree as to the time spent with each parent and failing agreement then either parent have liberty to apply to the Court.
7B.Noted: In the event Order 7A is activated so for as liberty to apply is concerned then neither party is bound by the rule in Rice v Asplund.

Husband

Parenting

During final submissions the husband sought orders in accordance with Exhibit R as follows:-
1.That the child […] born […] March 2005 live with the father.
2.That for the purposes of order 1 above, the child is to live with the father as follows:-
(a)from 9.30am on the next Saturday in which the father would normally spend time with the father to 9.30am on Sunday.
(b)On the following Saturday from 9.30am to 5.00pm Sunday;
(c)On the following Saturday from 9.30am to 5.00pm Monday;
(d)On the following Saturday from 9.30am to 5.00pm Tuesday;
(e)On the following Saturday from 9.30am to 5.00pm Wednesday;
(f)On the following Saturday from 9.30am to 5.00pm Thursday;
(g)On the following Saturday from 9.30am to 6.00pm Friday;
(h)For the purpose of Order 2(a) to (g) above, the mother is to spend time with the child when the child is not living with the father.
3.Thereafter the child is to spend time with the mother as follows:-
(a)Each alternate weekend from 9.30am Saturday to 5.00pm Sunday during school terms;
(b)Each Christmas school holidays for the second half and in each odd numbered year from 3pm Christmas Eve to 5pm Christmas Day;
(c)On Mother’s Day if it is not a contact week pursuant to order 2(a) above, from 9.30am to 5.00pm on Mothers’ Day;
(d)If contact pursuant to order 2(a) [sic] above falls on Father’s Day then contact shall be suspended on Father’s Day from 9.30pm [sic] to 5.00pm.
(e)(i) On the child’s birthday from 4.00pm to 8.00pm if the child’s birthday is on a week day or any day of the weekend when there is no alternate weekend contact;
(ii)If the child’s birthday is on a weekend that is a contact weekend then contact shall be suspended from 9.00am if the child’s birthday is on a Saturday and from 1.00pm until 5.00pm if the child’s birthday is on a Sunday;
(f)Until the child commences at school for 2 block periods of 1 week each period from 9.30am Saturday until 5.00pm the following Sunday, provided the mother gives the father at least 4 weeks written notice;
(g)Once the child has commenced at school for 1 week each school holidays except Christmas from 9.30am on the first Saturday of the school holidays to 9.30am on the following Saturday.
(h)Such other contact as mutually agreed between the parties.
4.Changeover of the child is take [sic] place, during the period provided for in orders 2(a) to (g) above at Central West Contact Service, and therefore [sic] at a McDonalds at a reasonably equal distance from the home of both parents.
5.That the mother is restrained from denigrating the father in the presence of or hearing of the child.
6.(a) That within 14 days from the date of these orders the mother is to attend a psychiatrist agreed between the parents or in the absence of an agreement, from a list of three (3) psychiatrists nominated by the father for the purposes of a psychiatric assessment and the provision of a written report.
(b)That each party is to pay one half of the costs of the psychiatric treatment and the written report.
(c)That the mother is therefore to comply with any recommendations made by the psychiatrist, if any as to treatment and medication and for as long as the psychiatrist recommends.
(d)Should the psychiatric assessment report recommend a suspension of the mother spending time with the child, then these orders are amended to provide for that suspension.
(e)In the event that the recommendations of the psychiatric assessment report require interpretation and or adjudication, then either party has leave to approach the court on 7 days written notice for a date for listing of the matter.
7.That the father is to authorise the school attended by the child copies of all school reports, newsletters, information relating to school photographs and events to which parents can attend and any other information relating to the child.
8.That each party is to notify the other party in advance of any specialist medical, counselling, assessment or other special treatment for the child in advance and is to authorise whoever provides such treatment to release to the other party all information relating to the treatment.
The husband seeks sole parental responsibility.

Property

In his Response, the husband sought a transfer of the S property to him upon the husband paying to the wife a sum of 40 percent of the value of the property.

The husband final position in submissions on the property application

The husband submitted that on contributions he is entitled to 35-40 percent. If the child is in his primary care, the husband submits there should be a 5 percent adjustment in his favour and he should therefore receive somewhere in the range of 40-45 percent of the assets.

SHORT HISTORY

The husband was born in April 1968 and is 40 years of age.

The wife was born in February 1969 and is 39 years of age.
The parties commenced cohabitation in November 2000.
The parties married in April 2002.
The child was born in March 2005 and she is now aged 3.
The parties separated on 30 November 2005.
In November 2006 the husband commenced living in a defacto relationship with Ms M.

MORE DETAILED CHRONOLOGY

The husband was born in April 1968 and is 40 years of age.
The wife was born in February 1969 and is 39 years of age.
The parties commenced cohabitation in November 2000.
Prior to the commencement of the cohabitation the husband had three children from a prior relationship.
At the commencement of cohabitation in November 2000, the wife owned an unencumbered property at W, household goods, a Suzuki motor vehicle and had an ANZ bank account. The wife had superannuation, a pending personal injury claim and an entitlement to 284 IAG shares. The wife was working full time as a coordinator for Q Company.
In late 2000 – March 2001 the wife received $35,000 from her settled personal injury claim.
On 30 January 2001 the wife purchased a property at L in the wife’s sole name for $170,000. The wife borrowed from the ANZ Bank, receiving a net amount of $134,937.10, received a first home owners grant and used her personal injury settlement of $35,000.
In April/June 2001 the parties brought the current matrimonial home at S for $240,000. The property was wholly financed using the L property as cross security. The parties held the S property as tenants in common with the wife having 99 percent and the husband having 1 percent.
In late 2001/early 2002 the husband established a business R Company owned by R Consulting Pty Limited.
In January 2002 the wife worked full time with N Company.
The parties married in April 2002.
In about July 2003 they purchased a property at H for $206,000. Again, this property was held as tenants in common as to 99 percent to the wife and 1 percent to the husband.
In 2004 a boat was purchased.
In September/October 2004 the L property was sold for $325,000. In addition, the W property, which the wife had prior to the commencement of the relationship, was sold and the wife received $32,460.
The child was born in March 2005 and she is now aged 3.
After the child’s birth in March 2005 the wife’s father moved into the granny flat at S property. He commenced to repair vehicles at that property.
Both parties agree that there was deterioration in the relationship between them after the child’s birth. The wife opines to Dr O that the husband was no longer the centre of her universe, notwithstanding the fact they had lots of good times before the child’s birth, their relationship consequently deteriorated after.
The husband tells Dr A a very different story in relation to the behaviour of the wife after the child’s birth.
In September 2005, H property was sold for $220,000 and the proceeds were used to discharge the ANZ loan.
The parties separated on 30 November 2005. There was an incident which took place on that day which will be discussed in much more detail later.
On 13 December 2005 the husband was charged with common assault arising out of the incident on 30 November 2005 and an interim AVO was issued against him by the wife.
In December 2005 the wife commenced proceedings in the Federal Magistrates Court and on 16 December 2005 an interim order was made relating to parenting and the occupation of the matrimonial home. The child was to live with her mother and the wife was to have occupation of the home. The husband was given supervised contact for 2 hours each fortnight at a contact centre. At this time there was an interim AVO which had yet to be dealt with by way of final hearing.
On 17 December 2005 the husband vacated the former matrimonial home.
In December 2005 R Consulting Pty Limited was placed into liquidation and the husband commenced G Pty Limited.
In January 2006 the wife’s father commenced repairs on a number of vehicles, and a land cruiser, preparing them for sale. These items were sold and the funds were applied to debt.
In February 2006, with the consent of the liquidator, the wife sold the land cruiser to reduce debt.
It took some time to organise the first contact event pursuant to the orders the Federal Magistrate made on 16 December 2005 for supervised contact. On or about Saturday 18 March 2006 the husband had his first contact with the child at the contact centre. The wife asserted that the child had sustained bruising to her face whilst in the husband’s care at the contact centre. The husband denies that bruising occurred whilst in his care.
On 11 August 2006 the common assault charge and the AVO charge were heard at the Blacktown Local Court on a defended basis. The husband represented himself. The wife was assisted by the police prosecutor. Both the common assault charge and the AVO were dismissed after a hearing before the Magistrate.
On 13 October 2006 Flohm J made an order relating to the child’s passport and on 23 November 2006 Flohm J made an order permitting the wife to take the child to Thailand for the wife’s brother’s wedding.
On 26 November 2006 the husband commenced living in a defacto relationship with Ms M.
On 7 December 2006 Flohm J in an interim hearing ordered that the child have unsupervised time with her father each Saturday from 9am to 3pm commencing 10 February 2007.
In March 2008 the wife asserts that the child disclosed sexual abuse to her. The child had a medical examination. I deal more specifically with those allegations later.

CREDIT

The wife gave her evidence in much the same way she presented to Dr O – articulate, measured and contained. Dr O commented that this seemed discordant with the matters of which she was speaking (namely domestic violence and possible sexual abuse of the child or, at least, of the child witnessing sexual activity).
I discuss below the inconsistency in the wife’s evidence as to the child’s head hitting the architrave. This inconsistency is a matter of some weight and effects her credit.
The wife’s inability to provide any explanation as to why she got the wrong month and the wrong year when describing to Dr O a very important event that she said happened when the child was playing with two dolls, only a relatively short time after the event was supposed to have taken place, significantly and adversely affects her credit.
The wife said to Dr A on more than one occasion that in 2005 there was stress in the relationship because she had formed the view that the husband was using prostitutes. The wife however told Dr O (at page 10 of her report) that one of the reasons she suspected the husband was away during the latter part of the marriage was because he was having relationships. Dr O confirmed that there was no mention by the wife to Dr O of prostitutes. This is an important inconsistency which goes to the wife’s credit.
I have formed the view that I cannot assume the wife is a reliable witness.

The wife’s father

On balance, as discussed below, I cannot accept the wife’s father’s evidence in relation to the husband kicking the wife with extreme force on 30 November 2005 as being accurate. Nor do I accept his evidence about the throwing of the keys. There is no injury to the wife consistent with a bunch of 15 keys hitting the left side of her face with force. There is no injury to the child that would indicate that a bunch of 15 keys fell to hit the child on the head.
Whilst I accept that the wife’s father said some quite complimentary things about the father, the wife’s father should not be seen as a totally neutral witness. He currently relies on the wife for his accommodation.
It is possible his memory is effected. He is 70 and the he told Dr A that he had once drank significant quantities of alcohol.
There is an inconsistency between the wife’s evidence and her father’s evidence as to whether or not her father took the child to Centro Shopping Centre when he went from the police station to buy shoes to replace the slippers he was wearing. The wife was sure he took the child but the wife’s father said that he did not.

The husband

There were a couple of occasions where the manner in which the husband gave evidence caused me concern. An example of this was when he was being asked questions about doing wheel stands on a public road with different children, who were not wearing helmets. Overall however, I concluded that the husband gave his evidence in a straight forward and frank way.

Ms M

I was impressed with the way Ms M gave her evidence.

Conclusion on Credit

Where the husband’s evidence differed from that of the wife and her father, I prefer the husband’s evidence unless I indicate otherwise in these Reasons.

DOMESTIC VIOLENCE BEFORE 30 NOVEMBER 2005

Assertion as to domestic violence between the husband and his former wife Ms J

I have no specific objective evidence as to what it is that it is alleged the husband did to his previous wife Ms J.
The wife told Dr O that after Ms J had her first baby, the husband punched and kicked her and they separated. Ms J then had a baby with another man. The husband and Ms J then reconciled and had a third child, C. The wife says there was more punching and kicking and they separated again.
The wife gives no evidence about these matters in her affidavits. What she told Dr O is hearsay. There is no evidence given by the wife that the husband admitted to her that he had punched and kicked Ms J on more than one occasion.
The husband categorises what happened between he and Ms J as pushing and shoving. He says it was a long time ago.
At page 8 of Dr A’s report it is recorded that the husband told Dr A that his relationship with Ms J was “pretty good for a while”, but there were times when they pushed and shoved each other and she obtained a twelve month AVO against him. He said he avoided conflict since then and preferred to walk away. They separated after her affair with his friend.
I have no more specific detail than that.
The husband asserted to Dr A that he had a good relationship with his ex wife Ms J and would have coffee with her when she visited.

2001 and the child C

At paragraphs 169 and 170 of her affidavit of 2 November 2007 the wife deposes:-
169.In 2001 I was at the home of [the husband’s mother] at […]. [Ms J] had just delivered [the husband’s] older children to [the husband] for contact. His son [C] (who was then aged about 8 years old) was crying and saying to [the husband], ‘I want to stay with mum’. [The husband] took hold of [C] with both his hands around [C] child’s [sic] neck and lifted [C] off the ground. [The husband] swung [C] around until [C] fell down on the front lawn.
170. [C] then ran up the street. [The husband] chased [C] up the street and tackled him to the ground. As he did so, the cigarette in [the husband’s] mouth touched [C’s] neck. Following the incident [C’s] neck was bright red. I reported this incident to the Department of Community Services by telephone.
The statement in the last sentence by the wife is disingenuous. The incident happened in 2001. The wife made no report to DoCS about this incident until after the separation in 2005.
The husband agreed that C ran away after his mother had dropped him off for contact changeover. The husband says that C ran after her car, the husband had to go after him and talk to him. He was not burnt with a cigarette.
I accept the husband’s version of what happened in 2001 with C at the changeover event.

Two prior separations before 30 November 2005

The wife gave evidence that on two occasions prior to 30 November 2005 there was verbal aggression by the husband and, as a result of the aggression, the wife left the matrimonial home.
The husband’s father indicated that there were minor differences between his daughter and his son-in-law but no altercations or violence until the events of 30 November 2005. He said that the wife, to avoid confrontation, left on two previous occasions to allow the husband to “calm down”.
The husband told Dr A that the wife did leave the home prior to the separation, he says for about three days, once with the child to visit friends in Canberra. However, he denies that they were arguing at that time.
The parties have different perceptions as to why the wife left the home. It is common ground that there was no physical violence. The wife’s mental status, which is discussed below, may explain the difference in perception. However, I find that the husband’s evidence that there was no need for him to “cool down” should be accepted.

THE EVENTS OF 30 NOVEMBER 2005

Because of the events of this day are of particular importance, I discuss the evidence at some length.

The wife’s evidence

The parties separated on 30 November 2005. The wife sets out her evidence about the incident at paragraphs 181 to 192 of her affidavit sworn 2 November 2007. She also gave oral evidence in some detail of her memory of the event.
The wife says the parties argued over a request by the husband that he have anal sex with the wife. She says that the argument began in the child’s room. The wife told the husband that she intended to go to a hotel to let him cool down. She said she packed her bag with nappies and clothes for the child, picked the child up in her left hand and had her bag in her right hand. She then walked down the hall. She says her husband stood in front of her in the hallway telling her she wasn’t leaving the house. She then said that she went back into her own bedroom and locked that door behind her. She said the husband came around outside and opened the bedroom window from outside and continued to abuse her. She telephoned the police and telephoned her father who lived in the granny flat. Her father did not immediately come. She attempted to exit the house through the back door with the bag that she had packed in her right arm. As she was coming down the hallway, the husband came into the house and pushed the laundry door, which opened into the hallway, into her. She said that the door hit her right shoulder. As she tried to protect the child from being hit by the door, the child’s head hit the architrave. The child began to cry loudly. The wife says at this point the husband’s mother (who is now deceased) joined the husband and the wife in the hallway. The husband’s mother tried to pull the child from her. The wife says that as she did this the husband took hold of her right arm with his left hand, squeezing hard with his fingers. She says then the husband held her as he punched her five or six times in the head. She said at this point she curled her body over to try and make sure that the husband did not hit the child. The wife says that the husband’s mother again said “Give her to me” and continued to try and pull the child out of her arms. The wife says that the struggle in the hallway went on for “several minutes”.
After this the wife exited through the front door. The wife says “[the husband] kicked me in the left buttock twice. He had his work boots on. His work boots were leather with steel caps on the toes”.
The wife asserts that the husband threw a set of keys at the wife and the keys hit her on the left side of her face. The keys fell from her face onto the child’s head. The wife says the child continued to cry loudly.
The wife says that her father approached as the husband kicked her. Her father spoke to the husband and to the husband’s mother as the wife put the child into the Toyota Landcruiser. The wife and her father then left the premises and drove to S Police Station.
The wife admitted in cross examination that when she attended the police station on 30 November 2005 she did not demonstrate to Constable B any visible injuries and she did not make a complaint.
Counsel for the husband submitted that it is a matter in respect of which comment can be made that the wife held what was a fairly large bag through the whole ordeal of 30 November 2005 whilst attempting to protect the chid from a head injury in the manner that she described and whilst blows were being rained upon her. There is some force in that submission.
The wife told Dr O that the keys “hit me in the eye” and that the 30 November 2005 was “the worst moments of my life”. The wife also said to Dr O after she had left “I did not want my life with him to end”.

The wife’s father’s evidence

The wife’s father lives in a granny flat at the back of the former matrimonial home. His evidence about what happened on 30 November 2005 is contained at paragraphs 38 to 45 of his affidavit sworn 27 November 2007. At paragraph 39 he says that::
“As I arrived at the front door I saw [the wife] exiting the front door. I saw [the husband] kick her in the buttock with his boots. I saw [the husband] throw a set of keys at her, striking her face.”
Exhibit J is a statement about the incident on 30 November 2005 which the wife’s father gave for the purposes of the police prosecution of the husband. He signed it on 12 December 2005. In that statement he says that he observed the wife being kicked in the left buttock by “[the husband’s] right leg twice as she exited the front door”.
A little later it reads:-
“[The husband], a large 125 kg man, was pale and wide eyed with a bunch of 15 keys in his right hand. [The husband] threw the bunch of keys at [the wife’s] left face hitting her left eye and they fell to hit [the child’s] head. [The child] let out another scream of pain.”
In oral evidence the wife’s father said that he wasn’t at the front door at all when he saw the kicks. In oral evidence he said he ended up at the front door but the kicks happened before he got onto the wife’s property. He insisted that he could see what was going on. He was moving at all times, he was running, coming up the other side of a Colourbond fence which at its highest point was about level with his nose. He insisted that the fence did not obstruct his view of the kicks. He said quite clearly that the kicks were with “extreme force” and at another time he said they were “hard kicks”. In his oral evidence he said both kicks were made by the husband using his left foot.
The wife’s father’s affidavit does not mention the keys striking the child’s face but in his police statement and in oral evidence he did say the keys fell onto the child. In oral evidence, he said he saw the keys being thrown by the husband at the wife over a distance of three metres, striking her in the face.
The wife’s father, when speaking to Dr A, indicated that at the time he stood between the husband and wife outside the premises on 30 November 2005, the husband’s mother was also there. The wife’s father said that the husband’s mother screamed “take the baby off her”.

The husband’s evidence

In his affidavit sworn 31 August 2007, the husband at paragraph 12 sets out his version of what happened on 30 November 2005 in the following terms:-
12.On 30 November 2005 I was at home and working in the house on the renovations. At about 9am the mother answered the telephone and when she got off the telephone we had a conversation with words said to the effect:- ‘aunty [E] had heart attack.’ [E] is the mother’s great aunt who lives in Melbourne. I said:- ‘do you want me to buy us some plane tickets to go and see her.’ [The wife] yelled at me:- ‘Get out. Fucking get out.’ I said:- ‘calm down. Everything would be ok.’ The mother became even more aggressive and started to pack [the child’s] bag. The mother was in [the child’s] room at the time. I said:- ‘What are you doing’. The mother said:- ‘I am leaving’. I thought at the time the mother meant that she was going out to get some air, let go her hurt and chill out. I said:- ‘leave [the child]. You are not thinking clearly and you’re in no mental state to take care of [the child].’ I tried to calm the mother down. She went to the bedroom with [the child] and closed the door and stayed there for about 15 – 20 minutes. The mother then came out of the bedroom with [the child] and started to walk down the hallway.

A paragraph in identical terms is contained at paragraph 14 of the earlier affidavit sworn by the husband on 5 December 2006.
The husband was asked in cross examination whether or not he accepted the version of the events of 30 November as put by his Counsel to the wife in cross examination. He agreed with THAT version.
After an objection based on legal professional privilege, the husband’s instructions to his Counsel in relation to the incident were produced and became Exhibit P. Exhibit P is in the following terms:-
“Alleged assault: 30 November 2005:
·Mother takes a call and learns that that Aunty [E] had a heart attack. At 8am
·Mother goes into the bedroom. Stays in the bedroom for 15-20 minutes.
·Mother came out of the bedroom and started to walk down the hallway holding [the child] in her left arm her bag in a right arm.
·At the time I was standing in the lounge room and my mother was sitting on a chair on the lounge room.
·The mother opened the laundry door, while holding [the child] in her left arm and the bag in her right arm/shoulder.
·She quickly closed the door and as she did so the strap of the bag got caught in between the door and the door jam.
·The bag was wedged outside the door.
·I could not see if [the child] hit her head on the architrave.
·Mother appeared to be pulling the bag from inside the room.
·I open the door to release the bag.
·The mother then walked out of the laundry into the hallway.
·I was standing in the hallway.
·I said to the mother: ‘leave [the child] here. You’re not in a mental state to look after her’.
·Mother did not reply.
·My mother was close by but I could not see her because she was behind me.
·My mother may have been standing in the hall or the lounge room.
·The mother pushed past me still holding [the child] in one arm and the bag in the other.
·I stepped backwards to allow her to go past me.
·Mother walked to the front door and grabbed the keys of [sic] the key rack that is next to the front door.
·Mother then walked through the front door with the keys.
·Mother walks over to the land cruiser parked on the front lawn.
·Mother opens the back passenger door on and places [the child] in the child restraint seat.
·As the mother was placing [the child] in the car [the wife’s father] arrived and was standing at the gate near the driveway.
·[The wife’s father] walked towards the land cruiser and I’ve met him at the land cruiser.
·I said to [the wife’s father] words to the effect of: ‘[the wife] is really upset. She is not in any mental state to drive the car or take care of [the child]. She is obviously going somewhere. Can you please get the keys off her and drive’.
·[The wife’s father] asked [the wife] for the car keys but [the wife] refused to hand the keys over.
·[The wife’s father] got into the passenger seat and [the wife] got into the driver’s seat and they drove off.”
In proceedings before Federal Magistrate Henderson, the husband relied upon an affidavit which was sworn by him on 5 December 2005. This affidavit was not tendered in evidence before me but the husband was asked questions about what he asserted in it during his oral examination.
The husband was also provided with a copy of it to read in the witness box. He agreed that in that affidavit he agreed that whilst the parties were in the hallway the husband described the wife as flinging the child around quite violently and that the wife hit his face, knocking his glasses to the floor. The husband was asked to explain why that detail was not contained in paragraph 12 of his affidavit sworn 31 August 2007 or in his instructions given to Counsel for the purposes of cross examining the wife about the incident.
The husband said that he had not remembered that detail until he had re-read it in the affidavit of 15 December 2005.
As a consequence, those matters were not put by Counsel for the husband in cross examination of the wife.
Dr A records the husband as giving him the following information about that day:-
“He was renovating at home and waiting for the tiler to come, when [the wife] changed her mind and wanted to polish the floor. She woke up in a bad mood and answered the phone when it rang. She began to cry and spoke about wanting to see her Aunt [E] in Melbourne. [The husband] offered to buy her plane tickets but she yelled at him to get out. She packed [the child’s] bag and said that she was leaving. [The husband] thought she was going to Melbourne and did not realise that she was leaving their relationship until he was notified about the separation from [the wife’s father]. [The husband] never saw her again.”
At page 8 of Dr A’s report, the following is recorded:-
“He said that he has never hit or kicked [the wife] and he did not throw keys at her. She had taken both sets of car keys when she left. He did not shout at her but she had slapped him once.”

Lack of evidence from the husband’s mother

The husband conceded in cross examination that in interim proceedings relating amongst other things to the occupancy of the home, the husband had not filed an affidavit of his mother setting out her evidence in relation to the incident of 30 November 2005. The husband’s mother is now deceased. It seems that no statement was taken from her while she was alive and therefore no firsthand hearsay evidence was available from her at this hearing. Counsel for the wife did not make any Jones & Dunkel submission, although Counsel put to the husband in cross examination that the reason he did not obtain an affidavit from her in the first place was because he knew her evidence would not assist his case. The husband denied that that was so.

The medical examination on 30 November 2005

On the afternoon of 30 November 2005 the wife had a consultation with her general practitioner, Dr H. Dr H examined the child and the wife, seemingly for the purpose of noting any injuries either of them had sustained.
Part of annexure A to the husband’s affidavit sworn 5 December 2006 contains a medical report from Dr H, which is undated but is in the following terms:-
“[The wife] was seen at this practice on 30.11.2005 following an incident at home. She reported having been physically manhandled by her husband prior to her attendance. She was holding her daughter and trying to walk out of the door from her husband who is physically aggressive.
She was pushed against the door frame.
Examination revealed bruising to the lateral aspect of her L orbit with some localised tenderness. She also [sic] tenderness over her L para cervical muscle. She later also discovered grip marks in the inner aspect of her right upper arm.
Her daughter was examined at the time but did not show any obvious sign of physical injury.”
The doctor was not called to be questioned on his statement and it was accepted as unchallenged evidence.
In oral evidence, I asked Dr A as to the meaning of “lateral aspect of her L orbit” and “L para cervical muscle”. He gave an explanation and demonstration. The first is the area between the left eye and the ear. The second is the left side of the neck.
A number of important comments can be made about Dr H’s report:-
107.1.In the doctor’s recording of the report that the wife made to him at that date, there is no history given to the doctor that the wife received five to six punches in her head (the wife in oral evidence indicated that they were all to the top of her head except for one to the left side of her face).
107.2.The doctor did not record any tenderness or bruising to the wife’s scalp.
107.3.There is no bruising or tenderness to the wife’s buttocks.
107.4.It appears that the grip marks on part of the wife’s arm are not something that the doctor observed at the time of the examination but it seems were something that the wife reported to him later.
107.5.There is no obvious injury to the left side of the wife’s face that would be consistent with her being hit with force with a bunch of keys.
107.6.There is no recording of any obvious sign of physical injury to the child, notwithstanding the wife’s evidence in respect of the child’s head hitting the architrave and the keys falling onto the child’s head.
The wife asserts that on the evening of 30 November 2005 she had a black eye (ie a bruise surrounding her left eye). Exhibit K contains a photograph of the wife’s left eye and cheek. This is a photograph which, according to paragraph 192 of the wife’s affidavit, was taken on the evening of 30 November 2005. I am unable to see, in that photograph, any bruising to the wife’s eye, let alone bruising that would be described as a “black eye”. Dr H, however, did note some bruising to the lateral aspect of her L orbit (ie, on the side of her face between her left eye and her left ear).
Exhibit K does show the wife had bruises on the underside of her right arm in the shape of finger tips (the photographs taken by the wife’s father of those bruises are Exhibit K). As I have said, it seems that bruising was not noticed by Dr H on the afternoon of 30 November 2005.

Conclusions about the incident on 30 November 2005

In my view neither the evidence of the wife nor the evidence of the husband gives a satisfactory explanation as to what happened at the former matrimonial home on 30 November 2005. For example, none of the parties in their evidence mention the presence of the husband’s mother outside the property, although the wife’s father mentioned to Dr A that she was. This information is consistent with the husband’s mother being concerned about the distressed state the mother was in.
Whilst the wife has given a more coherent and consistent version of what happened, her version is inconsistent with the medical evidence. The consistency in her version is in some way a product of the fact that she has constantly rehearsed her version of the events of 30 November 2005, initially re-enacting them and photographing that re-enactment for the purpose of preparing for the court case in 2006 and then during extensive therapy, rehearsing those matters in her mind on multiple occasions.
The wife described to Dr O how she partially extinguished her fear about the events of 30 November 2005 by continually rehearsing them in her mind (page 12 of her report):-
“When she started the counselling, [the wife] was intensely preoccupied with it, going over and over it in her mind; she was having nightmares, she was jumpy, on the lookout for him all the time. She had nightmares about him keeping watch on her and reporting on her. She was keeping a whistle on her at all times, she became scared of facing him in court ‘and then he lied about the hitting and kicking and his mother lied too’. She said it was very helpful to talk to Ms [R] and she got to talk about it ‘over, over and over’ until finally [the wife] could put it behind her to some extent.”
It is clear from what is set out above that the husband’s recent versions of what happened on 30 November 2005 omit significant detail from previous evidence that he has given.
Counsel for the wife comments that on previous occasions the husband (in his 2005 affidavit and in his interview with Dr A on 31 August 2007) had said that he had been slapped by the wife once. In the subsequent affidavits, when the husband recorded his evidence about the incident of 30 November 2005 that detail is omitted. It is also omitted from the instructions he gave his counsel set out above. The husband explained that in the more recent versions he had not remembered that detail. It is clear that the two more recent affidavits were prepared by his lawyers without reference to the previous affidavit. I accept the husband’s oral evidence that he had simply overlooked inserting this detail in his 2007 and 2008 affidavits and that he had not remembered earlier detail in his instructions to Counsel.
I do not put great weight on any criticism of the husband’s affidavits not relating what happened outside the premises on 30 November 2005. I do not believe anything of great moment happened outside the property. On balance, I have found that the husband did not kick the wife outside the property as asserted by the wife and her father, although I accept that the dispute continued after the parties moved to the outside area of the house.
The husband’s version as to what happened in the hallway however does not properly explain how the wife sustained injuries to the left side of her face and her neck. I find the most likely cause of those injuries is the wife’s head coming into contact with the architrave in the hallway as a result of the husband attempting to remove the baby from the wife in the hallway or as a result of the husband pushing the laundry door against the wife’s shoulder in the hallway.
There is an inconsistency between the wife’s father’s police statement and his oral evidence as to which foot the husband used to kick the wife. But the major difficulty I have with the wife’s father’s evidence is that the wife gave evidence that the husband had work boots on and that his work boots were leather with steel caps on the toes. The wife’s father said that the husband kicked the wife twice with extreme force, yet Dr H observed no injury to the wife’s buttocks. The father took photographs of bruising to the wife’s upper right arm on the evening of 30 November 2005. He did not take any photographs of any injury to the wife’s buttocks.
For the purposes of the assault and AVO proceedings in the Local Court, the wife re-enacted the events in the hallway using a doll that was probably not quite life size. The photographs are Exhibit E. Photograph 3 is a photograph which has attached to it a caption written by the wife:-
“Photograph 3 shows the door being slammed on [the wife] and [the baby]”
The photograph shows a male hand holding the door knob of the laundry door and slamming it onto the wife’s back, forcing the right side of the top of her head into the corner of the architrave and forcing the right side of the child’s head into the corner of the architrave.
The wife in her oral evidence marked on Exhibit C where she said the child’s head hit the architrave. The “X” seems to be on the corner of the architrave.
In paragraph 185 of her affidavit the wife says that the door hit her right shoulder (photo 3 in Exhibit E shows in the re-enactment the door being slammed into either her back or her left shoulder). In paragraph 185 of her affidavit, the wife says nothing about her head hitting the architrave, but rather that it was the child’s head that hit the architrave.
Had the re-enactment shown the door hitting the wife’s right shoulder (as stated at paragraph 185), it is likely the left side of the wife’s face would have hit the architrave. This may have led to the injuries to the wife recorded in Dr H’s report.
In her oral evidence the wife said that both her head and the child’s head hit the architrave, although the child’s head only hit the architrave with a glancing blow.
Dr A gave evidence that had the child’s head come into contact with a corner of the architrave there would certainly have been an injury observable to Dr H. He said even if the child’s head had come into contact with a flat surface with some degree of force there would have been some redness observable, particularly in light of how easily the child marked (as demonstrated in the photographs taken after the husband’s first contact in 2006 (Exhibit H) and as commented upon by Ms G in Exhibit L (see below)).
Had the husband kicked the wife with the force described by the wife’s father, it is highly improbable that the wife would not have shown and Dr H would not have observed some bruising or abrasion to the wife’s buttocks when Dr H examined the wife that afternoon. It is also likely that the wife’s father would have photographed the injuries that evening, had they existed.
I do not accept the wife’s father’s evidence that he saw the husband kicking the wife or the wife’s evidence that she was kicked by the husband.
Notwithstanding the fact that I concluded the husband has not fully accounted for the part of the incident which would explain the minor injuries to the wife observed by Dr H, I conclude that the wife has significantly over dramatised the events of 30 November 2005. The wife’s injuries are consistent with the thrust of the husband’s overall evidence. He was trying to stop the wife leaving the home with the child in circumstances where he had formed the view that the wife was in a highly agitated state. I conclude having regard to Dr A’s evidence that this over dramatisation is connected to the wife’s mental status discussed below.

Contact centre/marks on the child

The wife told Dr O that when the child was 14 months old on the first visit to Central West Contact Centre in 2006, the child came back with four marks on her face. The wife in the witness box indicated with four fingers and it was clear that the wife wanted me to draw the inference that the child received these marks as a result of rough handling by the husband. The wife asserted that the child was left alone with the husband at one point during the supervision. The wife raised a complaint at the contact centre on that day. The wife was unsatisfied with the reaction that the contact centre has given her.
The letter from the child contact centre written by Ms G indicates that the contact visit was supervised appropriately. Exhibit L is an email sent to the wife by Ms G, manager at the Macquarie Legal Centre, on 22 March 2006. It is in the following terms:-
Dear [the wife],
Complaint about Central West Contact Service
I wrote to you yesterday to acknowledge your complaint. Now that I have spoken to [Ms S] I can address the substantive issues you raised.
In your email you make a number of very serious claims, namely that:-
1.During supervised contact [the child] sustained injuries that you allege are bruises that are clearly four finger marks.
2.That these bruises were a direct result of the supervisor’s negligence and incompetence.
3.That the child was crying continuously for 45 minutes.
Our principal solicitor, [Mr U], has taken the opportunity to thoroughly investigate your complaint. As part of the process he spoke with the relevant staff and sought their written responses to your allegations.
I wish to put on record the following matters:-
1.Our service has been operating since 1996, a period of almost 10 years.
2.The staff member who supervised the visit, [MI], states she was present with the father and the child at all times. [MI] has been with our service for six years and is a reliable and trustworthy staff member.
3.The coordinator, [Ms S], confirms that each time she has observed [the child] and her father, [MI] the supervisor was present.
4.Both [Ms S] and [MI] state that apart from a short period at the beginning of the visit and at the time of her nappy change, [the child] did not cry. In fact, for a first visit, the view of the staff was that she seemed quite settled and happy.
5.At no stage did the supervising staff member, [MI], observe any incident that gave rise to the mark on the child’s face.
6. When the mark on [the child’s] face was pointed out to staff they both did not see it as a bruise, instead described it to me as a red mark of the type caused by bumping against something. Further, their recollection was of a single mark, not two different marks. It is noted that [the child] has a lovely fair complexion and even a small bump would leave a mark. That would be more noticeable than on a child with darker complexion. [The child] was observed as an active child crawling and pulling herself up as she explored her surroundings and it was thought that she could have bumped herself. Of course our staff, as non medical, are not expert to make a judgment as to the exact nature of the mark/s. Could you advise whether or not you had a doctor look at these marks and if so, we would appreciate the opportunity to confirm his diagnosis. In this regard we would need your authority and their details......

The husband denies that anything untoward happened during this first visit at the contact centre.
The wife took some photographs when she got home. Those photographs are Exhibit H. They show that the child had three, possibly four, marks to the right side of her head. Unlike 30 November 2005, I infer that the wife did not have the child looked at by any medial practitioner. I am unable to say how the marks got on the child’s face that were photographed by the wife at her house when she returned from the contact centre. I accept however the evidence given by the husband and the statements made by the contact centre in Exhibit L that these marks were not able to be observed on the child at the time that the wife raised her concerns with the contact centre before leaving it.
The wife told Dr O at page 5 of Dr O’s report, that “there has been an inquiry but she is yet to hear anything”. Exhibit L would indicate that this statement to Dr O is not accurate.

SEXUAL ABUSE ALLEGATIONS

The wife gives the following evidence in her affidavit sworn 13 May 2008:
Incident of Saturday 1 March 2008
15.[The husband] spent time with [the child] on Saturday 1 March 2008. His time with her was unsupervised. I delivered [the child] to Central West Contact Centre at 9.30am on Saturday 2 March 2008 and collected her at 3.30pm.
16.I changed [the child’s] nappy after collecting her from the contact centre. I noticed that her vagina was red.
17.On the evening of Sunday 2 March 2008 [the child] was playing with three dolls in front of me. There was a male doll and two female dolls, one blonde and one brunette. [The child] placed the male doll, face down, on top of the brunette female doll, face up. [The child] bounced the two dolls up and down. [The child] made groaning noises.
18.I said, “Who are they [child]?” She replied, “Daddy and [Ms M]”. I said, “Oh what happened when you saw that?” [the child] said loudly, “Bad [child], bad [child]”.
19.I said to her, “Did somebody touch your strawberry?” This is the term I use when talking with [the child] to refer to her vagina. [The child] said, “Yes”. I said, “Who? [The child] said, “Daddy”. I said, “Show me on the dolly”. [The child] picked up the blonde doll and took off its clothes. She pointed to the front of the doll’s vaginal area.
20.I said to [the child], “Did Daddy touch [Ms M’s] strawberry?” [The child] said, “Yes”. I said, “Show me where”. [The child] picked up the brunette doll took the clothes off it and pointed to between the blonde dolls legs. [The child] said, “But you need to spread your legs Mummy and this dolly does not spread it legs”.
21.I reported the above conversations and the red rash that I had observed to the DoCS Helpline by telephone on Monday 3 March 2008. The reference number was […].
22.I also reported the above conversations and the red rash that I had observed to […] Police by telephone on Monday 3 March 2008. Two male police officers came to my home including Constable [F]. I gave a verbal statement. They did not interview [the child]. Constable [F] said to me, “We recommend that you take [the child] to the Child Protection Unit at Westmead for an examination”.
23.On Monday 3 March 2008 I took [the child] to the Child Protection Unit at Westmead Hospital. [The child] underwent an external examination of her genital area. The results were subsequently displayed on a TV screen (out of [the child’s] site). [The child] did not display any distress during the examination, which she spent blowing bubbles. At the end of the examination the staff at the hospital said to me, “There is no physical evidence of internal interference”.
24.I believe that during the unsupervised visit with [the husband] on Saturday 1 March 2008 [the child] witnessed sexual activity between [the husband] and [Ms M].
25.[The husband] had 6 hours of unsupervised time with [the child] that day. [The husband] lives with [Ms M] at her home in […]. It takes approximately 1.5 hours to drive from the Contact Centre at Harris Park to [Ms M’s home]. Allowing for the return drive, I believe [the child] spent about 3 hours at [the husband] and [Ms M’s] home that day.
26.I believe it was inappropriate for [the husband] to engage in sexual activity during the short period of time he had [the child] in his care. I am concerned about who was supervising [the child] while [the husband] and [Ms M] were engaging in sexual activity. I am also concerned about whether [the child] may have witnessed sexual activity on other occasions she has spent unsupervised time with [the husband].
27.I instructed my solicitors to forward a letter to [the husband’s] solicitors about the events of 1 March 2008. Annexed hereto and marked with the letter “B” is a true copy of a letter from my solicitors to [the husband’s] solicitors dated 1 April 2008.
28.Since Saturday 1 March 2008 [the child] has made a reference of comments to me, set out below. I believe those comments are references to [the child] witnessing adult sexual activity on 1 March 2008 or on other occasions. On multiple occasions [the child] has said to me, “[Ms M] is sick”. I then said, “How is she sick?” [The child] said, “She was in bed mummy”. [The child] then raised her chin to look upwards and made what I can only describe as orgasm noises.
At pages 6 and 7 Dr O records that the wife gave her the following information:-
“On 1 May 2007 [the child] was on the bed and put a boy doll on a girl doll and bounced it up and down and made an ‘orgasm noise’. [The wife] asked ‘who are they?’ and she said ‘[the husband] and [Ms M] (meaning [the husband’s] girlfriend). [The wife] then asked had someone touched her and [the child] said yes, ‘on her strawberry’ and pointed to her genital area. [The wife] then asked if someone had touched [Ms M’s] strawberry and [the child] pointed to her genitals and said ‘yes, but you need to spread your legs’ and she began to demonstrate. [The wife] went no further and put to her bed.”
On instructions, the wife’s lawyers wrote to the husband’s lawyers on 1 April 2008 (It is not explained as to why it took a month to raise such a serious allegation with the husband when the husband’s unsupervised time with the child continued in the meantime). The letter asserts that the wife has formed the belief that the child had witnessed adult sexual activity between the husband and Ms M.
The letter marked annexure B of 1 March 2008 substantially sets out the details in paragraphs 15 to 26 of the wife’s affidavit sworn 13 May 2008. The husband agrees he did not reply to that letter. There is an important difference between what the wife told Dr O and what the wife says at paragraph 19 of her affidavit of 13 May 2008. At paragraph 19 the wife says:-
“I said to her, ‘Did someone touch your strawberry?’. This is the term I used when talking with [the child] to refer to her vagina. [The child] said, ‘Yes’.
As recorded above, when talking to Dr O, Dr O records:-
“[The wife] then asked had someone touched her and [the child] said yes, ‘on her strawberry’ and pointed to her genital area.
I asked Dr [O] whether or not her note was accurate. Dr [O] checked her notes and said that what was recorded seemed to be what the mother had said. That is, the mother asked [the child] had somebody touched her and [the child] volunteered ‘yes, on my strawberry’.”
So, the wife in her interview with Dr O on 2 May 2008, seeks to give the impression that the child volunteered that she had been touched on her vagina. The wife’s affidavit of 13 May 2008 records however what she put in the letter that her lawyer wrote on 1 April 2008, namely that it was the wife who said to the child “Did somebody touch your strawberry”. I find, if either of the versions given by the wife are in fact accurate, the version originally given by the wife in early April 2008 is likely to be the more accurate, and if it is accurate, then the wife has asked the child an important leading question.

Inherent likelihood of what the wife fears is happening

The wife makes it clear that she believes that the child has been exposed on multiple occasions to sexual activity between the husband and Ms M.
The husband denies that any such incident has ever happened, so does Ms M. Ms M’s evidence about her reaction when she received the April letter seemed very believable to me.
The husband currently has six hours unsupervised time with the child. The travel time chews up about three hours. The child is therefore with her father at Ms M’s for about three hours each Saturday. The wife asks me to accept that there is a risk, that on multiple occasions, the child has witnessed her father and Ms M being involved in sexual activity in that three hour window. I find the assertion that such an event or events have happened inherently unbelievable, particularly having seen and heard Ms M give evidence.

What the wife told Dr O about when the sexual abuse allegations happened

Dr A pointed out that Dr O had recorded in her report that the wife had told her that the occasion on which the child was on the bed and put a boy doll on a girl doll and bounced it up and down and made an orgasm noise and said that it was “[the husband] and [Ms M]”, was on 1 May 2007. This statement was made to Dr O in an interview that took place on 2 May 2008. When I raised this with Counsel for the wife, he referred to it as a typographical error. Dr O had already been asked questions by me on 21 May 2008 (neither counsel wished to ask her any questions on her report) and this inconsistency had been overlooked by me.
Exhibit Q is a facsimile transmission from Dr O dated 22 May 2008 which was admitted into evidence by consent. In that transmission, Dr O states that it appeared that the date set out in her report was correct. She attached to the transmission a copy of the relevant page from her notes which clearly has the date 1 May 2007 on it.
On 22 May 2008, the wife sought to give further evidence about this inconsistency. The wife said that she did tell Dr O that the event with the dolls happened on 1 May 2007 and that that was an error on her part. She reaffirmed that the event took place on 2 March 2008. I asked the wife how she could have made such an error at an interview with Dr O two months after the date when she said the event happened. The wife was unable to give me any satisfactory explanation as to how it was she told Dr O the wrong day of the month, the wrong month and the wrong year.
Counsel for the wife, in submissions, said that I should accept that the event that the wife described took place on the date she asserted because had it taken place on 1 May 2007, I could be confident, knowing what I know about the wife, that she would have raised the alarm immediately.
Whilst that argument has some force, it is equally open to me to conclude that had the events described by the wife happened on 2 March 2008, she would not have made an error of the nature that she made when relating the date they happened to Dr O. Whilst an error between the “1^st” and “2^nd” might be understandable given the heading before paragraph 15 of the wife’s affidavit, errors in relation to the month and the year are not little errors. The date the wife told Dr O about when she observed the child with the dolls casts considerable doubt over the veracity of the evidence that the wife gives about the child making disclosures of sexual abuse involving her father. The wife is the only witness to those disclosures. There is no other evidence that would corroborate them.
I am comfortably satisfied that there is no unacceptable risk that the husband has sexually abused the child or exposed the child to adult sexual activities. Whilst it is possible that the wife has led the child to say certain things to her, I find on balance it is more likely that the wife has fabricated the sexual abuse allegations.
The effect of the wife making the allegation was that the child had to be involved in what can only be described as an invasive examination at Westmead Hospital, notwithstanding the gloss provided by the wife in paragraph 23 of her affidavit of 13 May 2008.

WIFE’S MENTAL STATUS

The wife has done a number of courses which she has found beneficial. She has changed her religious activities and is involved in a group of “Parents without Partners”.
The wife’s presentation to Dr A and Dr O was very different. Dr A saw the wife on 31 August 2007; Dr O saw her on 2 May 2008 (eight months apart).

DR O’S EVIDENCE

Dr O did not see the wife behave in the way Dr A saw her behave.
Dr O commented on more than one occasion during her report that the wife had remained very calm and contained, notwithstanding the fact that she was reporting matters which would usually involve some emotion in the recounting. Dr O commented that her affect seemed mildly inappropriate.
The wife reported to Dr O that she has never suffered from depression or anxiety and she has never had counselling or psychiatric treatment (although she has had counselling with Ms R through the Victims Compensation Tribunal arising out of the wife’s reaction to the events of 30 November 2005).
Dr O concludes that on the wife’s presentation to her there was insufficient evidence to justify a psychiatric diagnosis. However, Dr O caveats her report by saying that all she did was see the wife and take her history. She was given no other evidence.
Dr O concludes that upon the wife’s presentation to her she does not have an Axis 1 Disorder (Axis 1 is a reference to the categorisation of mental illness in the Diagnostic and Statistical Manual of Mental Disorders 4^th edition). On the history given, Dr O concludes that the wife appears to have suffered from symptoms of post traumatic stress disorder related to the incident on 30 November 2005; that has been the focus of her counselling and appears to have largely been resolved.
Dr O says it is more likely that the wife suffers an Axis II disorder. Dr O says that if I conclude that the events did not occur as the wife has reported them then the possibilities are:
156.1.The wife fabricated those events; or
156.2.The wife greatly exaggerated those events in her mind; or
156.3.The wife is delusional.
I have found that the domestic violence, the disclosures by the child and the child’s behaviour are mostly not as the wife reports them. The wife does seem, however, to have a genuine belief these things have happened and that explains her current level of fear and concern.
If there is fabrication as I believe there is in relation to what the wife has said about the child reporting observations of sexual activity and sexual abuse, then Dr O is of the view that that does not reflect mental illness but may reflect personality or characterlogical disturbance.
In relation to the events of 30 November 2005, I conclude the wife has greatly exaggerated her observations. Again, according to Dr O, the most likely reason is again personality or characterlogical disturbance. The wife told me in evidence that she had not suffered abuse in her childhood which Dr O indicated might be a likely cause of this disturbance.
As I have said, Dr O does not absolutely discount a possible diagnosis of Delusional Disorder (an Axis I disorder). At page 17 of her report she says that the fact that a diagnosis of Delusional Disorder could not be made at the interview, would not be unusual. She says it is entirely possible that a person with “well systemised” delusional ideas may not appear to be mentally ill. Dr O explained that “well systemised” refers to ideas that are presented with an internal logic consistent such that if the basic premises are accepted then they appear to be reasonable. This is a common feature of a Delusional Disorder. In order to make such a diagnosis, however, the doctor says there needs to be independent evidence that the person’s belief system actually has no basis in reality.
If I had to make a judgment based on Dr O’s evidence alone, I would conclude that the wife has a personality disorder.

DR A’S EVIDENCE

However, I have strong evidence from another adult and child psychiatrist who was the single expert in this case and had advantages that Dr O did not have. Dr O did not see Dr A’s report prior to her interview with the wife.
Dr A is an adult child and family psychiatrist and was appointed as the single expert in this case. He first saw relevant adults along with the child. He secondly had available to him much, if not all, the material that has been exhibited during the hearing.
Dr A records at page 2 of his report that in the two incidents prior to 30 November 2005 the wife reported the husband as being angry and abusive to the point of her having to leave the home.
In the interview with Dr A on 31 August 2007, the wife talked fast and Dr A said that at times she was difficult to follow. He said her thoughts repeatedly strayed off the topic of conversation and at times she spoke about unrelated matters in over-inclusive detail. He was tested about his conclusion that the wife strayed off the topic and was cross examined about the apparent inconsistency between paragraph 4 on page 2 and the fifth full paragraph on page 9 of his report. I am satisfied that the doctor’s conclusion on page 2 that the wife’s thoughts had derailed was not impugned.
Overall, I am prepared to accept Dr A’s evidence and conclusion that at various points during his interview with the wife on 31 August 2007 that her thoughts did derail on occasions.

The wife’s behaviour after the child was about 6 months old

The wife’s father recorded that the husband spent long hours at work after the child’s birth and that his daughter had become exhausted.
The husband reported to Dr A that after the child’s birth the husband thought he could do nothing right in his wife’s eyes. The husband asserted that after the child was about 6 months old the wife’s care of the child deteriorated and that she neglected to wash her bottles and would make up formula with tap water.
The husband says in his affidavit (paragraphs 10 – 13 sworn 5 December 2006), that he also told Dr A that the wife struggled to get out of bed in the mornings and neglected herself. She stopped taking pride in her appearance and no longer wore makeup or brushed her hair. She stayed in her pyjamas and spent parts of her day in bed. She did not care about her clothes and was less attentive to housework. Dirty dishes and washing was piling up. She complained about the husband working long hours.
The husband asserted to Dr A that the decline in the wife commenced two months after the child’s birth. Both parents agree that they used cannabis at an earlier time.
The husband asserted that the wife resumed using cannabis and became a hermit and not wanting to do anything. The husband told Dr A:
“He saw her taking cannabis and confronted her about it. She was argumentative, often contradicting herself. He spoke to his local doctor about her symptoms and was given contact details for the Bankstown Psychiatric Service, which [the wife] refused to attend. She accused him of seeing prostitutes, which he denied.”
In her affidavit of 13 May 2008 the wife concedes that she used cannabis with the husband in 2000 but says she does not use cannabis nor has she seen the husband using cannabis since that time. The wife underwent two urine screens after she read Dr A’s report. They are annexed to her affidavit dated 27 November 2007 and 30 April 2008. Those tests indicate that cannabinoids were not detected. The wife was not asked any questions in cross examination about her use of cannabis after the child was 6 months old and I found that surprising. On the basis of the evidence I cannot put any weight on what the husband told Dr A about the wife’s use of cannabis during the period after the child was 6 months old.

The wife’s reaction at Dr A’s offices on 31 August 2007

The wife attended for an interview at Dr A’s office on 31 August 2007. Dr A said that his consulting room was in a group of rooms where a number of other patients of other doctors were waiting in a public area.
Dr A records that the wife appeared terrified when she heard that the husband was in the building and coming up the stairs. He said she was fearful, not knowing what to do, and after initially hoping to go down in a lift, hid in the bathroom and waited for the husband to enter Dr A’s office.
The wife denied that she hid in the bathroom. At paragraphs 6 and 7 of her affidavit of 13 May 2008 the wife, apart from recording the fact that she told Dr A that she was fearful of the husband, does not give any credence to Dr A’s description of her presentation at that time. I accept Dr A’s evidence in that regard.
Dr A said that he did not think the wife’s presentation during this incident could be explained by any fear or anxiety that she could have reasonably held. He reached the conclusion that she was paranoid at that time, given that it was his view that there was no reasonable explanation for the acute anxiety that she displayed one and a half years after the separation.

CONCLUSION ABOUT THE WIFE’S MENTAL STATUS

Dr A reached the conclusion that the wife had developed a mental illness some time after the child’s birth and he says that his observations of the wife are consistent with his conclusion that she is mentally ill. He concluded her thoughts were disorganised and difficult to follow, she spoke fast and was terrified when the husband entered the building. He speculated that she may be paranoid, with features of abnormal mood. He referred to the possibility of this being constitutionally based.
I am unable to say with any certainty whether or not the wife has a delusional disorder or a personality disturbance. In my view that diagnosis has not been definitively made by either doctor and I accept Dr A’s opinion that to make that diagnosis, a course of consultations would probably need to be undertaken by the wife in a non forensic setting. On either of the possible diagnoses however, there is an unacceptable risk that the wife’s mental status will, in the future, pose a significant threat to the child being able to establish a meaningful relationship with her father.
Dr O says that if the wife’s problems are personality based then they would be resistant to therapeutic intervention and that medication would not be indicated.

Husband’s mental status

Dr A assessed the husband as presenting as a calm, settled man with no evidence of depression or anxiety. He maintained his memory and concentration. Dr A concludes that he does not have a psychiatric illness.

PARAMOUNT CONSIDERATION

In deciding what parenting orders to make for the child, I must regard her best interests as my paramount consideration (Section 60CA Family Law Act (“the Act”)). Based on my weighing of matters discussed in this Reasons for Judgment, I have concluded that it is in the child’s best interests for her to primarily live with her father.

PRIMARY CONSIDERATIONS

In determining those best interests I must primarily consider s.60CC(2) of the Act:
182.1.the benefit to the child of having a meaningful relationship with both of her parents;
182.2.the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
In addition I must consider those matters set out in s.60CC(3) and (4) of the Act and I also have in mind the objects and their underlying principles of Part VIII of the Act.
It is the wife’s case that there is a need to protect the child from future escalation of sexual abuse and family violence by the husband. It is the husband’s case that the wife’s mental status is such that her conviction that the child is in need of protection from him means that it is unlikely in the future that the child will be able to benefit from having a meaningful relationship with him.
Dr O at page 12 of her report says:
“Asked whether she was concerned about sexual abuse, [the wife] said she saw the examination of [the child] and there was no evidence of it. With domestic violence it starts slowly and gradually increases and maybe with child sexual abuse it happens that way too; she doesn’t know. If they have sex in front of the child, is that the beginnings of it?”
The wife says that she left the husband just before the domestic violence escalated into something far more savage. In the same way the wife is asserting that as at March 2008 there may have been the start of a process of grooming the child for future sexual activity with the husband.
I find there was no unacceptable risk of an escalation of domestic violence. I find that there is no unacceptable risk of any sexual activity between the child and her father, either directly or as a result of the child witnessing sexual acts.
As a result of the wife’s mental status, there is an unacceptable risk that if the child remains living primarily with the wife, the child will not have the benefit of a meaningful relationship with her father.

ADDITIONAL CONSIDERATIONS

Expressed views and their weight

The child is three years of age and consequently has not expressed a view as to what might be in her best interests. However, Dr A has made observations of the child with both her parents which I now discuss.

Relationships

With mother

I accept that the child is a three year old who has her primary attachment to her mother.
However, although Dr A recorded in his observations of the wife with the child that there were moments of warmth between them, he also observed the wife spoke to the child in an abrupt tone and was frustrated with the child’s aggression, which the wife struggled to control.
Dr A on page 12 of his report expresses concerns about the wife’s interaction with the child. She had difficulty managing the child, who became aggressive and provocative, and she appeared frustrated and abrupt.

With father

The observations made by Dr A indicate a close attachment between the child and her father. The interactions between them was warm as were the child’s interactions with Ms M. Dr A records that:
“[The child] squealed happily when playing ‘boo’, ‘photo’ and tickling games. He observed that [the child] was more settled and playful than she was with either her mother or her maternal grandfather. She was calm when she separated from her father at the end of the session.”
When the interview finished she kissed her father twice and snuggled into her father’s shoulder.

With maternal grandfather

The child related comfortably to her maternal grandfather, a 70 year old man, without there being any recorded special attachment. Dr A commented that the grandfather had difficulty engaging the child and he had limited strategies for interacting with her.

With Ms M

Dr A described the child’s interaction with Ms M as warm. The child kissed her twice when separating from her and the husband.

Willingness to encourage and attitude to relationship between child and other parent; attitude to the responsibilities of parenthood

Section 60CC(4A) of the Act requires me in particular to focus upon events that have happened, and circumstances that have existed, since the separation occurred.

Mother to father

There is an important issue in this case about the wife’s willingness and ability to facilitate, and encourage, a close and continuing relationship between the child and her father. As I have said, there is an unacceptable risk that the wife’s mental status will, in the future, mean that she is not willing or able to facilitate and encourage the child’s relationship with her father.
The wife says that the child experiences night terrors. The wife has kept statistics and says that 64 percent of the night terrors happen on either a Friday, Saturday or Sunday night.
The wife also told Dr O that the child pulls her hair saying “Daddy, daddy”.
The wife complained to Dr O that the child has come back from access with scratches on her body and stinking of cigarettes.
The wife told Dr A that she remained anxious since separation and had worried about the husband abducting the child. She refused to go shopping until late in the day. She was also worried about his mother “who beat up [the father’s child C]” and “choked [the child”.
The wife told Dr A that she was worried about the husband being “uncontrollable and unpredictable and injuring [the child]”.
However, I find that all of these reported events and fears are a product of the wife’s mental status. Even if the child’s night terrors are associated mainly with the time when she moves from her mother to her father, it has not been demonstrated that that is a product of the six hours she is with her father. They are more likely to be a product of the child picking up on the distress that the wife undoubtedly feels as a result of the child being with her father.

Obligation to maintain the child

There is no indication in this case that the husband has not fulfilled his obligation to pay proper child support for the child.

Effect of Change

I do have a great reluctance in making an order which would move a three year old from a mother with whom the 3 year old has her primary attachment and placing the 3 year old with her other parent, notwithstanding her attachment to the other parent. She will also be cared for by a step parent, at least for some of the time. I am mindful of the fact that it will cause the child some short term pain.
Dr O cautioned against placing the child of this child’s age with the other parent and his new partner in circumstances where the child was primarily bonded to the wife. I have however had the advantage of hearing Dr A’s evidence in full.
The husband in oral evidence seemed to be sensitive to the fact that the child may miss her mother in the short term if there was a change of residence. He thought that it was a problem that would reduce over a period of a couple of months. In my view, whilst the husband seemed sensitive to the effect of the change he was proposing upon the child, he underestimated the period of time that was necessary for the child to make the adjustment. However, his proposal does mean that the child’s time with him will increase over a short period until the longer term position is established. It should not be assumed however that the effect of change on the child will be ameliorated only after such a short time.
I have to make an assessment as to the likely medium and long term effects of the wife’s mental status upon the child and particularly upon the child’s ability to maintain a meaningful relationship with her father. Those effects upon the child, in my assessment, lead me to conclude that making the change is the better of two evils.

Practical difficulty and expense of being with and in touch with other parent

There are some difficulties and expense associated with the fact that the parties live an hour to an hour and a half away from each other. I am of the view that after a short lead-in period where the current changeover arrangements will be maintained, then the travel should be more evenly shared and that the changeover point should be at a spot approximately equal distance from the residence of the two parties.

The capacity of parents and others to provide for needs of the child (including emotional and intellectual needs) and responsible parenting

Mother

The husband’s affidavit describes the mother’s deterioration six months after the child’s birth. As I have observed, he says she stopped sterilising bottles, became tired, irrational with loss of appetite. She says she became forgetful and her housework declined. I can put no weight on what he says about her use of cannabis. He wanted her to see a counsellor but she refused.
However, there is no assertion that the wife lacks ability to properly physically care for the child today.

Father

The members of the husband’s household are his partner Ms M and her son who is aged 13. Ms M’s daughter from a previous marriage stays on occasions as well.
Ms M’s 11 year old daughter lives with her father and she sees Ms M every few days.
I am satisfied on the evidence that physical accommodation can be made to appropriately house the child in the husband’s household.
The more contentious question is what arrangements will be put in place for the child’s care. Both the husband and Ms M are involved in their own businesses. The husband is involved in the construction industry and Ms M is in the office administration industry. Ms M has her own office at home. She sometimes goes to client’s sites. She reported to Dr A that she worked 25 – 30 hours a week and that her work was flexible. She said that her clients fit in around her not the other way around.
The proposal that the husband put to Dr A was that the child would live with him all the time and Ms M would help to look after her. He said he would change jobs, if looking after the child made that necessary. He was happy for the child to spend time with the wife. The husband said that during the course of the litigation, he had doubts about times and the circumstances in which the child should see her mother.
The husband was not cross examined to any extent as to how his work commitments would impinge on his ability to look after the child. The main evidence I have got about it comes from Ms M who asserts that the husband can be flexible, as can she. The husband’s case is between he and Ms M there is more than adequate resources to look after the child.
Ms M said that she did not know the city (on the information I have she comes from regional New South Wales) and did not know where the places were that the husband said he worked.
The wife told Dr O that the husband worked “mostly in the [northern Sydney] area”. If that is so, this means there is a fair journey each day from his home to northern Sydney.
The husband and Ms M have now been together for about 18 months. Ms M seems committed to support the husband in his application that the child be with him most of the time. I accept Dr O’s comment that the reality is that a significant portion of the day to day care of the child, particularly in the next couple of years, will fall to Ms M. The child though is at an age where she currently goes to child care Mondays and Tuesdays from 9am until 4pm. The wife reported to Dr O that she loved doing that.
Counsel for the wife criticised the fact that there was a dearth of evidence in the husband’s case about what plan the husband had for caring for the child should she come into his full time care. It is true that there is no specific plan in relation to hours of work and when the husband and Ms M, will have the responsibility, for caring for the child, but I am satisfied on balance that the husband will be able to properly care for the child with the assistance of Ms M.

Motor bike riding

Both the husband and wife are motor bike enthusiasts.
The wife at paragraph 31 of her affidavit sworn 13 May 2005 sets out the conditions under which she believes motor bike riding might be appropriate. At paragraph 32 she records some comments by the child late last year that would indicate that the child was on a motor bike with her father. The husband was cross examined about this occasion in his back yard. Counsel for the wife charged the husband with lack of insight into having an infant so young balanced on a machine that was running. I accept the evidence that he gave. Although the child did not wear a helmet on that occasion, the husband was moving very slowly with his feet on the ground with the child clenched between his thighs in front of him. I find that there was no unacceptable risk that the child was in any danger on that day.
Of less credit to the husband is the evidence arising from Exhibit O. It is clear that on that day the husband was engaged in an activity in respect of which there was some objective risk. He twice did wheel stands down a public road with different children of older years as a passenger seated in front of him. He was wearing a helmet. The two children involved were not. The husband initially asserted that he was in full control. Given his experience on a motor bike he probably thought he was. He did however agree that what he did on that occasion was not appropriate.

The child’s ear infection

The wife complained that the husband allowed the child’s ear piercing to become infected. He did this by replacing studs once they had fallen out. The wife told me that the child had ended up in hospital for three days. This issue was not the focus of any cross examination of the husband and I am unable to say that it was the husband’s negligence that caused the child’s pierced ears to become infected.

Corporal punishment

The husband conceded in cross examination that he had physically disciplined his other children when they were little. He said that he had smacked them “through their nappy”. He denied that he had ever done that in an uncontrolled or angry manner. He said 15 years ago one of his children had a bad habit of biting his siblings and he tried different approaches and found a smack was the one that actually worked. At the time he believed it was part of being a parent and would only use a smack as a last resort.
The husband told Dr A that he never smacked the parties’ child.

Family violence

In summary, the wife makes the following claims:
229.1.In about 2001 there was an incident involving C, a son of the husband from his marriage to Ms J. The wife says she observed:-
229.1.1.The husband take C by the throat;
229.1.2.Chase him up the street;
229.1.3.A cigarette burn on him.
The wife says that she warned the husband that she would not tolerate a repeat of the incident.
229.2.There were two occasions during the marriage when the husband was angry and verbally abusive. The wife says that she left the home to allow him to cool down.
229.3.The 30 November 2005 was the first occasion when the husband was physically violent. The parties separated on that date. The wife says that she was absolutely terrified that the child would be brain damaged during that incident.
229.4.The wife asserts that on Saturday 3 May 2008 at about 3.15pm she was on her way to Central West Contact Centre. She asserts that she was travelling at 90 kilometres per hour when the husband tailgated her on the M4 motorway. They came to the Church Street exit on the M4 (about 500 metres from Central West Contact Centre). They stopped at traffic lights. The wife took her camera out of the glove box and took a series of photographs of the husband in the car. These photographs were shown to the husband in the witness box but were not tendered in evidence. The wife was making the point that the husband had driven in a manner designed to frighten her and had breached an injunctive order of the court that he not come within a certain distance of the wife. I accept the husband’s evidence that he did not tailgate the wife.
I have already made comment about the allegations in the first three sub paragraphs above. In relation to the last incident, I accept the husband’s evidence that, in order to not come within the prescribed distance when the wife was stationery at the set of red traffic lights at Church Street, he would have been late dropping the child off to the contact centre had he been required to take a different and more circuitous root.
Counsel for the wife submitted that Dr A lacked an adequate understanding of the effect that domestic violence has on a victim. It was submitted that Dr A had set a high bar for a person who had suffered the events that the wife had endured. This charge against Dr A may have had some force had I found that the events that the wife has said occurred, did in fact occur. I have found on balance that the events in relation to sexual abuse did not occur and that the events in relation to domestic violence have been significantly exaggerated by the wife. In those circumstances, I do not find the criticism of Dr A’s understanding of domestic violence to have any basis.

I conclude that there has been no systemic violence by the husband and that there is no general tendency for him to be violent. He has no criminal record. The charge against him arising out of the incident on 30 November 2005 was dismissed and the Magistrate made no protection order in favour of the wife.

Any family violence order

There is no current nor has there ever been a final family violence order, although there is a current injunctive order made in the wife’s favour which I see no need to continue.

The order that would be least likely to lead to the institution of further proceedings

I acknowledge that the orders that I make are not necessarily ones that are the most likely to minimise the risk of future proceedings. The reality is that the wife will not accept that the orders that I make are in the child’s best interests and I acknowledge it is likely that she will seek to challenge them and/or seek to vary them at some future time. However, given the other matters that I have to consider in this case I do not put a great deal of weight on this matter.

Equal shares parental responsibility

Section 61DA(1) of the Act provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides that that presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child or family violence. In the circumstances of this case (and given the narrow definition of abuse), that proviso does not apply. However s,61DA(4) of the Act says that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The wife seeks sole parental responsibility for the child. The husband seeks sole parental responsibility. He also says that if I decide that the child is to mainly live with her mother then he concedes sole parental responsibility to the wife. Consequently neither parent asks me to make an order for equal shared parental responsibility.
The parties do not currently communicate effectively with one another about the child or anything else at all. There have been some attempts at written communication in the past. Exhibit F is a full set of what the wife said the communication sheets were. The documents show a very poor level of the parties’ ability to communicate even in writing.
Both parties said uncomplimentary things about the other. When giving a history, the wife told Dr A:-
“[The child] was born 10 weeks premature but [the husband] ‘had a coffee before coming to the hospital, and wailed like a baby saying ‘what about me’’. He never changed [the child’s] nappy but liked to have the ‘spotlight’ on him.”
Given my findings in respect of the wife’s mental status, I do not think it is realistic to assume that the parties can communicate meaningfully in relation to long term decision making in respect of the child.
The provisions of s.65DAA of the Act provide that if a parenting order provides that a child’s parents are to have equal shared parental responsibility then the court must consider equal time and then if not, substantial and significant time. I do not intend to make that order for equal shared parental responsibility in this case and consequently the provisions of s.65DAA do not apply.
I nonetheless have the discretion to consider equal time or substantial or significant time. If I did so I would have regard to the types of matters that are otherwise referred to in s.65DAA(5) of the Act. There is a problem in relation to the distance that the parents currently live apart. This would not be insurmountable however was it not for the fact that the current and future capacity of the parents to communicate with each other is highly problematic and is not conducive to a coparenting arrangement.
The main reason however for not considering a coparenting arrangement is the fact that the impact of that arrangement upon the child would be to place her, for a significant period of time, on a regular basis, with her mother who believes that the child’s father is a person who is likely to groom the child for sexual activity, is likely to expose the child to sexual activity and is likely to expose the child to family violence. It is in the child’s best interests that the chld’s exposure to these thoughts by her mother be limited as much as possible.

Change of name

The wife seeks that the child has the hyphenated surname, Langley-Bramble. The husband opposes that, saying he sees no benefit for the child in the change proposed and a positive danger if the child is to spend most of her time with the wife. The husband believes the wife may use the change as a further wedge between him and the child.
The wife says that I should make the order because:-
245.1.Where there is high conflict between parents, for identification purpose it is only fair and reasonable that the child have both names;
245.2.Both parents are likely to be highly uncooperative in the future;
245.3.The child is not of an age where she is aware of her surname to any great degree and has not commenced signing her name at milestone developments such as the commencement of kindergarten or commencement of high school.
In my view it is unlikely that the husband will attempt to alienate the child from her mother in the future. However, given that I intend that the child will live with her father most of the time, I think on balance, there is some value for the child in having both her parent’s surnames and I intend to make the order that the wife seeks in that regard.

Transitional period

I agree with the husband’s proposal that the new arrangements for the child be introduced by increasing the times that the child live with her father over a period of seven weeks.

Change over

After a period when the child’s time with her father gradually increases, the husband applies for changeover to be at a McDonalds store that is reasonably equal distance between the two homes. The wife wants changeover to happen at the Blacktown Contact Centre. It seems to me that McDonalds is a sensible suggestion after a period of time which allows the parties to settle into the new arrangements. In the meantime the current arrangements at the contact centre can continue. I do not accept the wife’s criticism of the Central West Contact Centre.

PROPERTY

In this matter my task is to:
249.1.Identify and value the property, assets, financial resources and liabilities of the parties;
249.2.Identify relevant contributions and assess them;
249.3.Consider relevant matters referred to in s.79(4)(d) – (g) of the Act;
249.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.
Notwithstanding the length of the marriage, neither party requested that I deal with contributions on an asset by asset basis and I intend to take a global approach to contributions.

BALANCE SHEET

The parties agreed that there were the following assets and liabilities:

Assets

S property

$335,000.00

Superannuation - wife

27,847.00

Superannuation – husband

37,000.00

Total

$399,847.00

Liabilities

Mortgage

$69,000.00

Loan – wife’s father (w)

11,154.00

Loan – Visa (w)

3,000.00

Total

$83,154.00

Net Assets

$316,693.00

Add back of $51,000

There was an issue as to whether or not there should be an add back of $51,000. I am satisfied that the wife has accounted for the funds that were received by her. There should be no add back of any sum against the wife.

Contributions

The wife claims 75 percent based on contributions. As mentioned above, the husband submitted that as on contributions he was entitled to a 35 to 40 percent adjustment.
As set out above, at the commencement of cohabitation the wife owned an unencumbered property at W which was sold in about September/October 2004 for $32,460. She also had a pending personal injuries claim at the date of the commencement of the cohabitation. An amount of $35,000 was received by her in late 2000 – March 2001.
At the commencement of the cohabitation the wife also had household goods, a Suzuki motor vehicle and an ANZ Bank account.
The husband does not assert that he had any significant assets or liabilities at the time of the cohabitation.
In late 2001 and early 2002 the husband established a business which the parties worked in together.
The wife’s paid employment changed in January 2002 when she commenced to work full time with N Company.
The history of the acquisition of properties and the sale of properties is set out in the long chronology above.
The wife in her affidavit of 2 November 2007 says that on 30 January 2001 she purchased a property at L. The purchase price was $170,000. She said that she paid 5 percent deposit or $8,500. She also paid the purchase costs. She said she paid a deposit using her Visa card, although she had some savings (unspecified). She said to the best of her recollection she was not required to pay stamp duty on the purchase and that the legal fees were about $2,000. She said she received a first homeowner’s grant of $7,000. The wife borrowed a net amount from the ANZ Bank of $134,937.10.
The purchase price of L property was $170,000 and on the wife’s evidence an additional $2,000 was put towards its acquisition by way of payment of legal costs, so that the overall acquisition costs were $172,000. The amount of $35,000 came from the wife’s personal injury settlement. The amount of $35,000/$172,000 is 20 percent of the acquisition costs.
L Property was sold in October 2004 for $325,000. Twenty (20) percent of $325,000 is $65,000.
In addition, the wife contributed the W property that she owned prior to the commencement of the relationship which was sold for $32,460. These funds were seemingly used to reduce debt that the parties had accumulated in respect of the acquisition of other properties and in respect of the business run by them. The wife also probably received the balance of a $4,000 deposit paid by the purchasers of the W property in September 2004. It is not clear whether or not agent’s commission was involved in relation to the money from the deposit.
The husband says that the wife received a compensation payout of “about $30,000”. The wife’s evidence however in relation to a precise figure was not seriously challenged and I accept that the payout was $35,000.
Assuming that $36,000 was received from the sale of W property, the wife, on a pseudo mathematical approach, could say that she contributed about $100,000 ($65,000 + $36,000) from pre contribution assets towards the current pool of assets.
Some considerable weight has to be put in relation to that matter given the size of the current pool of assets ($316,693).
This is a short marriage and initial contributions have to be given some considerable focus.
At the commencement of the cohabitation the wife was working full time as a coordinator for Q Company.
The husband says that during the marriage he was employed full time in the construction industry and that he has continued to be employed in the construction industry since the separation. His employee up until 30 November 2005 was R Consulting trading as R Company. He was the sole director of that company.
The wife has made a contribution as the primary parent since November 2005.
Even in a short marriage weight has to be given to the myriad of other contributions, apart from financial contributions, that have been made and I have regard to what the parties have said about those matters.

Conclusion about contributions

In all the circumstances it is appropriate that the property of the parties be divided based on contributions as to 72.5 percent to the wife and 27.5 percent to the husband.

Section 79(4)(d) – (g) matters

The wife seeks a further 8 percent adjustment for s.79(4)(d) - (g) matters on the basis that the child lives with her. The husband says there should be a 5 percent adjustment in his favour should the child live with him.
The husband is currently in full time employment. The wife has the capacity to be employed full time. She has worked as a coordinator for about 16 years.
The wife told Dr O that she wasn’t working at present and was able to stay at home full time and provide the child with a “fairytale life, I provide her with everything”.
The wife said that she was completing a Bachelor of Education in primary school teaching and that she will finish that in 2009.
The wife is physically capable of working full time.
The wife, as a result of my findings on contribution, has more capital than the husband. The husband, I infer, received some financial advantage from living with Ms M in her home. The parenting orders I intend to make will mean that the husband will be primarily responsible for looking after the child. In time it is probable that the wife will be required to pay some child support.
In all the circumstances I do not think any adjustment should be made for matters referred to in s.79(4)(d) – (g).

Just and equitable

The wife calculates that there should be a payment of $16,837 to the husband based on her claim that she is entitled to 83 percent of the assets (83% = $53,837 – the husband’s superannuation of $37,000 = $16,837).
Based on a consideration of contribution and s.79(4)(d) – (g) matters, I consider that the property of the parties should be adjusted as to 72.5 percent to the wife and 27.5 percent to the husband. This would mean that the wife would be entitled to receive net assets in an amount of $229,602 ($316,693 x 72.5%) and the husband would be entitled to receive $87,091 ($316,693 – $229,601). The wife has indicated that she will take on the debt on the home and the debt to her father.
The husband already has $37,000 in superannuation, so the amount that the wife needs to pay the husband by way of adjustment is in the sum of $50,091 ($87,091 - $37,000).

The dog

The wife sought the return of the dog on the basis that it was the child’s dog. The husband denied it was the child’s dog and said that the dog was his dog prior to the child’s birth and that the dog has always been with him. It seemed undisputed that the husband took the dog at the time of separation. The wife’s evidence was that she does not believe the dog is at the husband’s home because the child does not return to her with dog hairs upon her. I accept the husband’s evidence that the dog lives at the husband’s property and on balance reject the notion, suggested by the wife, that the dog is currently on some farm. I find that the just and equitable result is for the dog to stay with the husband.
In any event, given the result I have reached in the parenting matter, if the wife is seeking the return of the dog because she is “[the child’s dog” then it is appropriate that the dog remain at the husband’s home.

Items sought to be returned by the wife

In paragraph 103 of her affidavit sworn 2 November 2007, the wife asserts that when she returned to S property on 17 December 2005 she observed various items missing. She wants them returned. I indicated that I would be disposed to make an order that the husband return to the wife personal documents of the wife (including the wife’s late mother’s autopsy report, death book and the wife’s passport). The husband indicated, through his Counsel, that he had none of these things. There was no questioning of either party about these matters. Given the lack of evidence no order will be made in relation to chattels.

Sale of home

If there needs to be a sale of the matrimonial home because of non payment then on current figures the husband would be entitled to receive 19 percent of the net proceeds of sale ($50,091/$335,000 – $69,000).

I certify that the preceding two hundred and eighty-six (286) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date: 16 June 2008

[2008] FamCA 437

16 June 2008

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies

Costs

Assets
S property	$335,000.00
Superannuation - wife	27,847.00
Superannuation – husband	37,000.00
Total	$399,847.00
Liabilities
Mortgage	$69,000.00
Loan – wife’s father (w)	11,154.00
Loan – Visa (w)	3,000.00
Total	$83,154.00
Net Assets	$316,693.00