LEOS & LEOS
[2017] FamCA 1038
•8 December 2017
FAMILY COURT OF AUSTRALIA
| LEOS & LEOS | [2017] FamCA 1038 |
| FAMILY LAW – CHILDREN – FAMILY VIOLENCE – Where there are three children aged between seven and nine who live with the mother – Where the father seeks orders that the children live with him based on allegations that the mother’s behaviour is verbally and physically abusive of the children – Where the father sought to tender illegal recordings he took of the mother allegedly abusing the children – Where the mother conceded to some instances of verbal abuse of the children – Where the parties have a long history of allegations made by each of them against the other to police and the Department of Family and Community Services – Where the risk to the children posed by the mother is weighed against the risk to them of changing their residence – Where the expert recommended the children remain residing with the mother – Orders made for the children to live with the mother and spend significant and substantial time with the father – Orders made for the parents to have equal shared parental responsibility for long-term decisions affecting the children. FAMILY LAW – PROPERTY – CONTRIBUTIONS – Application by the parties for an adjustment of their property interests pursuant to s 79 – Where the parties cohabited for seven years – Where the father worked through the marriage and the mother was the primary homemaker and caregiver for the parties’ three children – Where the contributions are assessed as equal – Where the s 75(2) factors favour the mother – Where the father’s paid legal fees from previous proceedings are added back into the balance sheet – Where the property pool is to be divided 60 per cent to the mother and 40 per cent to the father – Orders made for each party to receive 50 per cent of the sale proceeds of the former matrimonial home – Order made for the father’s arrears of child support to be paid out of his entitlement from the proceeds of sale. |
| Evidence Act 1995 (Cth) s 138 Crimes Act 1900 (NSW) s 9 |
| Ferraro and Ferraro (1993) FLC 92-335 McLay and McLay (1996) FLC 92-667 Hickey and Hickey (2003) FLC 93-143 Bevan & Bevan (2013) FLC 93-545 |
| APPLICANT: | Mr Leos |
| RESPONDENT: | Ms Leos |
| INDEPENDENT CHILDREN’S LAWYER: | JPM Legal |
| FILE NUMBER: | SYC | 6210 | of | 2010 |
| DATE DELIVERED: | 8 December 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 1, 2, 3, 4, 5, May 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Smart |
| SOLICITOR FOR THE APPLICANT: | Camden Solicitors and Conveyancers |
| COUNSEL FOR THE RESPONDENT: | Mr Cook |
| SOLICITOR FOR THE RESPONDENT: | Aston Legal |
| Mr Blank | |
| SOLICITOR FOR THE RESPONDENT: | JPM Legal |
Orders
Parenting
All prior parenting orders are hereby discharged.
The parties may by agreement, which must be evidenced in writing (text message or email may be used to evidence the writing), vary any of the parenting orders made herein. Thereafter such agreed variations are to be binding upon the parties in the same manner as these orders are binding upon the parties.
The parents have equal shared parental responsibility for X born … 2008, Y born … 2008 and Z born … 2010 (“the children”) in relation to long-term decisions affecting the children subject to the following restrictions:
(a)The children are to remain at their current schools and are not to be removed without the written consent of both parents.
(b)The children are not to be enrolled in a high school unless each parent agrees in writing.
(c)The mother is to select and notify the father in writing of a medical practice to which the children are to be taken should the need arise, unless the urgency of any circumstance requires a child be taken to another medical practice or hospital.
(d)The medical practice which the mother selects is to be one which is open at least for one day on most weekends.
(e)Neither party is to enrol any of the children in any extra‑curricular activity for participation on any of the times they are with the other parent, without first obtaining the consent in writing from that parent.
(f)Where the parties enrol, by agreement, the children in extra‑curricular activities which involve each parent ensuring the children attend such activity, then each parent is to ensure the children participate in such activity whenever the children are in their care and each parent is permitted to attend such activities at times when the children are in the care of the other parent.
(g)There is to be no restriction placed by one parent upon the other which might prevent each parent attending at any school event or other extra-curricular activity event the children might from time to time participate in even if that activity is one where the other party has not given consent for it to take place when the children are in his or her care.
(3A)Each parent shall be solely responsible for day-to-day decisions required to be made in relation to the children whilst the children are in their respective care pursuant to these Orders.
Should there be no agreement reached between the parties in a timely manner about any of the requirements of the parenting orders made herein then the parties are to seek mediation from an agreed mediator (including from a Family Relationships Centre) and following that they may seek an order from the court at their own risk as to costs. Each party is on notice that a costs order is likely to be made should the court determine there has been an unreasonable position taken by one of the parents.
The children live with the mother.
The children are to spend time with the father as follows:
(a)Commencing from the making of these orders and during school term time, each alternate weekend from 4.00 p.m. Friday to 5.00 p.m. Sunday. The first occasion to commence 8 December 2017 if the children are still in school term time and if that weekend falls as the father’s weekend with the children pursuant to the orders in place immediately before these orders being made. If that weekend does not fall as the father’s pursuant to the previous orders, this order is to commence in Term 1 of 2018.
(b)Each Wednesday during school term from after school until 7.00 p.m.
(c)Subject to the father completing the requirements of Order 16 hereof and commencing from a time when the father is able to accommodate the children overnight in a place which takes about 45 minutes (give or take 10 minutes) or less to deliver the children to school on Monday morning, he is to spend time with the children as follows:
(i) from after school on Friday until school time on Monday each alternate weekend; and
(ii) each Wednesday evening from after school until school time the following Thursday.
(d)Each parent is to facilitate any reasonable request made by any of the children to have telephone time with the other parent.
In relation to birthdays and special occasions, the children are to spend time with each of their parents (if they are not already spending that time with that parent pursuant to Order 6) as follows:
(a)Each of the parents is to have time with all of the children on the birthday of each child and each parent. The time the children are to spend with the parent with whom they are not living/spending time on each of those occasions is to be two hours at a time agreed or, alternatively, from after school (or 4.00 p.m.) until 6.00 p.m. That parent is to collect the children from school (or the alternate changeover site if not a school day) and return the child to the alternate changeover site as specified in these orders.
(b)The children are to spend Father’s Day with the father from 9.00 a.m. until school time the next morning. The children are to spend Mother’s Day with the mother from 9.00 a.m. until school time the next day.
(c)In years ending in an even number, the children shall spend time with the mother from 4.00 p.m. on Christmas Eve until 2:00 p.m. on Christmas Day, and in odd numbered years from 2:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day;
(d)In years ending in an odd number, the children shall spend time with the father from 4:00 p.m. on Christmas Eve until 2:00 p.m. on Christmas Day, and in even number years from 2:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day;
(e)In years ending in an even number, the children shall spend time with the mother from 3:00 p.m. on the Friday before Greek Orthodox Easter until 9:00 a.m. the next morning, and in odd numbered years from 9:00 a.m. on the Saturday before Greek Orthodox Easter until 4:00 p.m. on Greek Orthodox Easter;
(f)In years ending in an odd number, the children shall spend time with the father from 3:00 p.m. on the Friday before Greek Orthodox Easter until 9:00 a.m. the next morning, and in even numbered years from 9:00 a.m. on the Saturday before Greek Orthodox Easter until 4:00 p.m. on Greek Orthodox Easter.
(g)In the event that there are any special cultural or religious celebrations which each party would like at participate in with the children then they are to agree in writing how such times are to be shared so that each parent may participate with the children on such occasion even if the agreement requires the parties sharing on a year about basis.
The children are to spend the following school holiday time with the father:
(a)During the Christmas school holidays in 2017, from 9.00 a.m. on Saturday 16 December 2017 to 5.00 p.m. on Saturday 23 December 2017 and from 9.00 a.m. Sunday 14 January 2018 until 6.00 p.m. Saturday 27 January 2018.
(b)In years ending with an even number, for the first half of all school holidays. Such holidays to commence at the end of the school day on the last day of school term and to end at 5.00 p.m. on the day calculated as mid-way through the holidays.
(c)In years ending in an odd number (commencing in 2019) for the second half of all of the school holidays. Such time to be calculated from 5.00 p.m. on the mid-way point of the holiday period (which are to be deemed to commence at end of school time on the last day of the school term) and to conclude at 5.00 p.m. on the day before the children are to attend school for the next school term.
For the purpose of these Orders and unless otherwise agreed in writing between the parties, whenever changeover is required at other than the children’s school, changeover shall occur at the Suburb T McDonalds Family Restaurant, situated on F Street, Suburb T (“the alternate changeover site”).
Each of the parties is restrained from denigrating the other parent, or the other parent’s family and anyone with whom the other parent is in a domestic relationship with, in the presence of, or within the hearing of, any of the children.
The father and mother shall use their best endeavours to ensure that no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or other parent’s partner or family, either to or in the presence or hearing of the children.
The father shall use his best endeavours to ensure that the children, or any one of them, do not refer to any person, other than the mother, as “mother”, “mum”, “mummy”, or any other abbreviated form of the word “mother”.
The father and mother are restrained from discussing these proceedings with the children or in the presence or hearing of the children.
The father and mother shall ensure that they keep the other parent informed as soon as reasonably practicable of:
(a)any medical condition, symptoms or illness suffered by the children which has required attendance upon a medical practitioner whilst in their respective care;
(b)any occasion when the children are due to be hospitalised or have been hospitalised;
(c)any medication that has been prescribed for the children and the instruction for administration;
(d)any treating medical practitioner who the children have seen in the event of an emergency where the child has not seen the medical practitioner, required to be engaged by these orders, or details of any specialist medical practitioner the children have been referred to;
(e)any appointment where the children are due to attend with any psychiatrist, psychologist, counsellor or therapist and where the other parent is required to attend or may attend if they wish;
(f)any social, school or religious functions which the children are to attend;
(g)the telephone and contact numbers (should there be a temporary change from the parents usual mobile and home telephone contact numbers), including both landline and mobile, if applicable for:
(i) Christmas Day;
(ii)Greek Orthodox Easter;
(iii)Other special culturally significant and religious celebration days.
Should any of the children be hospitalised, the parents are to arrange between them when each shall visit the child and each is to ensure there is no disruptive or loud or offensive interaction at the hospital between them or between members of their extended family.
The father may, at his option, attend upon a psychologist (who informs him he or she has experience in helping parents who have been experiencing high conflict relationships with former partners around spending time with their children) of his choice. Upon his attending upon such person for therapeutic counselling for six sessions, with a space of not less than 14 days between each session, the father is to provide the Independent Children's Lawyer and the mother with a letter or document which evidences such therapy sessions have taken place.
The father may have his partner Ms P, his father or his sisters collect the children at the commencement of the time the children spend with him or are returned to the mother, or their schools. The father is to provide to the mother and to the children’s schools a list of the persons who will collect and return the children for changeover of care and shall cause the children’s schools to be authorised to allow the children to leave the school with any one of those persons. The mother is to give any consent which may be required by the children’s schools to enable this order to be implemented.
The appointment of the Independent Children's Lawyer is to continue for a period of six months from the date of these orders for the purpose only of receiving the required documentation for Order 16 hereof and assisting the parties as a referral point should some dispute arise.
Neither parent, other than if urgency requires, is to commence any further parenting proceeding in this Court or the Federal Circuit Court, without first seeking the assistance of a Family Relationship Centre counsellor to reach an agreement. Each parent who commences a proceeding contrary to this order does so at their risk as to costs.
The mother is to cause the children to undergo a course of therapy or counselling with Ms M or someone in her practice, if that is affordable to the mother. Otherwise the mother is to arrange for the children to have counselling with a counselling service which is affordable to her. The mother is to provide to any such therapist or counsellor a copy of the expert’s report and a copy of these Reasons for Judgment and these Orders.
Unless the parties otherwise agree in writing, all communication is to be by text message and/or email. For that purpose each is to ensure that the other has at all times details of the mobile phone number which is to be used as the number to which all text message communication is to take place. Each parent is also to provide the other with their email address for communication.
Each party’s application for parenting orders is otherwise dismissed.
Property
Subject to Order 28 hereof the parties shall within 14 days of the date of these orders join in and do all acts and things and sign and execute all deeds, documents and instruments necessary to effect the sale of the former matrimonial home situated at and known as H Street, Suburb R New South Wales being the whole of the land and all its improvements containned in Certificate of Title Folio Identifier …95 by private treaty and shall place the property in the hands of an agent for sale.
That upon the completion of the sale of the former matrimonial home in accordance with Order 23 above, the parties shall distribute the proceeds of sale in the following order and priority:
(a) In discharge of the mortgage presently encumbering the former matrimonial home with Westpac Banking Group;
(b) In discharge of any outstanding Council and Water Rates;
(c)In payment of Real Estate Agent’s proper commission arising from the sale;
(d) In payment of proper legal costs and expenses arising from the sale;
(e) In payment of any other expenses which may have been reasonably incurred in respect of such sale;
(f) In payment to the father of any funds paid or expense incurred by him pursuant to the agreement reached between the parties pursuant to Order 28 hereof;
(g) That the loan from the paternal grandfather Mr Leos Snr to the father be repaid to Mr Leos Snr;
(h) That in payment of the balance then remaining:
(i) In payment to the mother of 50% of the balance.
(ii) In payment by the father to the Child Support Agency of the amount of child support owing at that time. The mother is to obtain a current statement from the Child Support Registrar and provide it to the solicitor acting on the sale of the former matrimonial home and also to the father.
(iii) The balance thereafter to the father.
That if the former matrimonial home is not sold within 56 days of the date of these orders in accordance with Orders 23 and 24 then the property be listed within 48 days for sale by auction. If there is no agreement between the parties regarding the reserve price then it is to be set by the president of the Real Estate Institute of Australia. Funds from the sale are to be distributed in accordance with Order 24.
That if the matrimonial property is not sold in accordance with Orders 23, 24 and 25 then within 42 days of the last auction the property be relisted for sale by auction where the reserve price is 5% less than the last reserve price at auction. Funds from the sale are to be distributed in accordance with Order 24.
That if the property is not sold in accordance with Orders 23, 24, 25 and 26 then the former matrimonial home is to be relisted in accordance with Order 26 until sold.
The parties may, by agreement, cause work to be carried out at the property in order to prepare it for sale so it might achieve the best price reasonably attainable. Any agreement is to set out in writing exactly what work is to be carried out. The parties may appoint a manager to obtain quotes for the work to be carried out or they may devise a method of obtaining quotes and engaging contractors to carry out the work. The cost of the work is to be met by the father and he is to be repaid all approved expenditure for the work carried out.
Where the parties agree that work is to be carried out pursuant to Order 28 hereof they are also to set a time frame for the work to be completed and at the conclusion of that agreed time the provisions of time required in Order 23 hereof will commence to operate.
That unless otherwise provided for herein, each party shall be forthwith declared entitled to retain and shall relinquish in favour of the other party any claim to any right title or interest in items of personal property presently in the possession or custody including monies held in any bank, building society or credit union, shares, superannuation or life entitlements, motor vehicles.
That the father and the mother hereby declare that they are not aware of any liability to which either of them has either a joint or several liability with the other, including but without limiting the generality of the forgoing, any bank, credit or charge accounts, guarantees and any liability resulting from any of the parties previous business (if any) and any other dealings.
That if it is subsequently found that any such liability exists, the party pursuant to whose own business or other dealings such liability arose shall indemnify the other against all claims, costs, demands, suits, actions and proceedings which may be made against all incurred by the other party in respect thereof.
In the event that either party fails to sign any necessary document or instrument or to do any acts required or contemplated by these Orders to be done with such failure continuing for 14 days, then the Registrar of the Family Court of Australia in pursuance of the Orders conferred on him or her under Section 106A of the Family Law Act 1975 (Cth), as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.
That all Orders made are made on a final basis in relation to property and the outstanding application in relation to property.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leos & Leos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 6210/2010
| Mr Leos |
Applicant
And
| Ms Leos |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Leos (“the father”) and Ms Leos (“the mother”) are the parents of twin girls, X and Y, born in 2008 (now aged 9), and a son Z, born in 2010 (now aged 7) (collectively referred to as “the children”). The children and each of the parents have, in my summation, suffered from domestic conflict of different kinds since the birth of the twins. The reasons contained herein will amplify this conclusion.
The orders which I propose to make herein will do nothing more than attempt to protect the subject children from parental abuse. The determination in this matter is refined to an assessment of risk to the children. The formulation of that risk is best described as the balance between the risk to the children of suffering further bouts of horrific verbal abuse from their mother weighed against the emotional risk of a change of residence to their father and living within a possibly unstructured parenting regime.
What seems reasonably clear from the evidence is that these children are unlikely to develop within a parenting partnership which is child-focused, free of parental conflict and not demanding of exclusive loyalty, as the parties thus far have been unable to provide same.
At the background of this case is a rich cultural heritage. Both the mother and father have been born into families of Greek origin. Both clearly cherish that background and wish their children to be part of it.
This case illustrates the oft voiced statement that ‘it is very difficult to prove what happens behind the locked doors of a family home’. This court sees cases every day where one party alleges actions and words were used against them within the walls of the family home and where those allegations are emphatically denied. In this case the father faced the frustration that although the NSW Police and the NSW Department of Family and Community Services made many visits to the family home, no action appears to have been taken to prevent the mother parenting very young children in what I am satisfied was an appallingly abusive manner. Being a child of the electronic age, he resorted (I am satisfied out of frustration and legitimate concern for his children) to the use of readily available hidden surveillance equipment.
I am satisfied the recorded material he obtained from that surveillance provided compelling evidence to support his case that the mother was, at that time, abusing his children in the manner of screaming at them, physically chastising them, and using appalling profanities and threats which terrified those children.
Ultimately, I did not have to look at the evidence contained in the recordings made from the surveillance because the mother conceded she had probably exhibited the types of behaviour which, it was said, could be seen and heard in that evidence.
My prediction is that this Court will be pressed to consider s 138 of the Evidence Act 1995 (Cth) more frequently as equipment readily available to the public to record abhorrent parenting behaviour and conflict is used. Already mobile phones, widely used in this society, have recording facilities which can be operated without the knowledge or consent of the person being recorded.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The parties commenced a relationship in about 2006 (the mother says January 2007) and married in 2008.
The parties separated in 2013 (the father’s assertion) or 1 September 2014 (the mother’s assertion). Both parties say there were a number of separations during that time. The mother said there were seven separations (the father said three) during the period from the date of marriage to the final separation. Whatever the exact number and duration of each period of separation, it is clear there were many.
The court record shows that on 30 September 2010 the father filed an Initiating Application in the Federal Magistrates Court (as it then was) seeking parenting orders only. Orders were made in that court, however, it was not until April 2012 that the mother filed a Response. That proceeding was concluded by a Notice of Discontinuance filed by the father 12 December 2012.
The father initiated proceedings again on 1 September 2014.
The parties resided during their cohabitation at Suburb R, a Sydney suburb. In 2016 the mother moved to Suburb Q where she occupies a unit.
The father now resides at his parent’s house at Suburb B NSW. The father and his fiancé Ms P are proposing to build a five bedroom house in the D area of NSW.
The mother did not work during the marriage.
Issues
In relation to parenting, the issues that require determination are as follows:
·Should the surveillance tape captured by the father be admitted into evidence? (In the early part of the hearing there was an application to tender a recording of an illegally recorded video. The circumstances surrounding the recording and the issue of its admissibility into evidence are discussed later in these reasons.)
·Was the mother abusing the children as alleged by the father?
·What order should be made in respect of parental responsibility?
·What order should be made in respect of which parent the children should live with and how much time should they spend with the other parent?
In relation to property, the issues to be determined are:
·What was the date of commencement and conclusion of cohabitation?
·What was the value of the former matrimonial home at the date of commencement of cohabitation?
·Does the father own a luxury motor vehicle, jet ski and go-kart?
·Is the father in arrears in payment of child support?
·What is the nature of the loan from Mr Leos Snr to the father?
·What were the parties’ respective contributions?
PARENTING
Orders sought
The father provided a minute of order in which he sought the following parenting orders:
1.The children [X] born … 2008, [Y] (sic) born … 2008 and [Z] born … 2010 live with the father other than when they are to spend time with the mother as set out herein.
2. The children shall live with their mother as follows:
a.Each alternate weekend from afterschool Friday until 6 pm Sunday.
b.For the first half of med (sic) year school holidays in even numbered years and the second half in odd numbered years but not including the Christmas holidays.
c.Week 3pm Xmas eve until 3 pm xmas day even and odd years about (sic) during the Christmas School holidays beginning with the first week in even years and the second week in odd numbered years.
d.With the changeovers to occur at school or McDonald’s family Restaurant [Suburb C] or [Suburb U] whichever is relevant with the mother to collect at the beginning of time and the father to deliver at the end of the children’s time with him.
Christmas Day arrangements: In odd numbered years the children shall spend from 3 pm on Christmas Eve until 3 pm Christmas day with the father and in even numbered years with the mother.
3. Until further order the children will communicate with the mother or father as follows:
a.By telephone each Wednesday between 6.30pm and 7pm and for the purpose of this order, the parents will ensure they are appraised of each others phone numbers, that their phones are charged and available for use and that the children are afforded privacy to receive the telephone calls.
b.That the father or mother will cause the children to telephone the other parent as may be relevant between 12.00noon and 1.00pm or 5.00pm to 6.00pm on the following occasions:
i. Any of the children's birthday.
ii. The mother's birthday.
iii. Easter Sunday.
iv. Christmas Day.
8.That a copy of these orders will be sufficient authority for either party to contact the schools attended by the children from time to time, and seek all relevant information about the education of the children and to receive all Reports, Notifications and the like that are relevant to the children.
9. That the (sic) either party and their family members will be permitted to attend any and all school functions, concerts, athletic events, fetes and the like that a parent would normally be invited to attend and while attending such functions shall not encourage the children to behave badly in relation to the other parent.
10. That a copy of these Orders will be sufficient authority for the either party (sic) to contact any medical practitioner or specialist, and seek to obtain all relevant information about any treatments, medication, prescriptions and the like, relevant to the child.
11. That each party will, within 48 hours of the date of these Orders, provide to the other party, the names and address and contact numbers for all current treating medical practitioners and or specialists for the child and will provide to the other party, details of any new treating doctors or allied health professionals for the child within 7 days of the appointment of a new Doctor or Specialist.
12. That each party will, within 72 hours of any change, inform the other of their new address or contact telephone number.
13. That each party will, as soon as practical, inform the other in the event that:
(i) a child suffers a serious accident,
(ii) a child is hospitalized,
(iii) a child is referred for specialist medical attention.
14.Neither parent will denigrate the other parent, that parent's partner or members of that parent's family in the presence or hearing of one or more of the children and that each parent will use all reasonable efforts to prevent any other person over whom they have control or influence, from denigrating the other parent, that parent's partner or members of that parent's family in the presence or hearing of the child.
15.That neither parent will discuss parenting orders or related issues with any of the children or in the presence or hearing of any of the children and that each parent will use all reasonable efforts to prevent any other person over whom they have control or influence, from discussing the parenting orders and issues with any of the children or in the presence or hearing any of the children.
16.That if any disagreement or issue arises from the observance of these orders the parties will seek a mediation (sic) with a Family Relationships counsellor before bringing any application back to court.
The mother sought the following parenting orders which were the orders put forward by the Independent Children's Lawyer:
1. That all previous Orders in respect of the child [X] (born … 2008), [Y] (born … 2008), and [Z] (born … 2010) (the Children) be and hereby are discharged.
2. The Children live with the Mother.
3. The Mother not change the school of any of the Children without the Father’s consent.
4. The Mother otherwise have sole parental responsibility.
5. Upon the making of these Orders, the Father undertakes to seek counselling for no less than ten sessions with either of [Mr E] or [Ms L], or any mental health professional (the Therapist) as may be recommended by either [Mr E] or [Ms L].
6. The Therapist be provided with a copy of the Report of [Ms V] dated 15 October 2015, the Judgment in these proceedings, and a copy of these Orders.
7. The Father will provide the Mother’s solicitor with proof of attendance of such sessions.
8. Upon the making of these Orders, the Children shall spend time with the father as agreed between the parties, or failing agreement, as follows:
(a)each alternate weekend, commencing from the weekend after the making of these Orders, from 3:00 p.m. on Friday after school until 5:00 p.m. on Sunday;
(b)in the off week, each alternate Thursday from after school until 6:00 p.m.;
(c)after furnishing the Mother’s solicitor with proof of attendance upon the Therapist for ten sessions, the children, in addition to the time spent under 8 (a) and (b) the Father shall spend time with the Children during school holidays (holiday time) as follows:
(i)in the first half of Terms 1, 2 and 3 of gazetted NSW holidays;
(ii)in the third and fifth week of Term 4 of gazetted NSW
(iii)For the purposes of (i) and (ii) holiday time commences from 10:00 a.m. on the Monday of that week until 6:00 p.m. on the Sunday of that week.
9. Father’s time at 8 (a) and (b) shall be suspended during school holidays and be replaced with holiday time.
10. In addition to the above, and on the following occasions, the children shall spend time with the parties as follows:
(a)the Father shall not have the Children on the weekend which includes Mother’s Day, but in substitution the Father will have the Children with him on the following weekend, at the same time as set out in Order 8 (a) above;
(b)the Mother shall not have the Children on the weekend which includes Father’s Day, but in substitution the Mother will have the Children with her on the following weekend;
(c)in even numbered years, the Children shall spend time with the Mother from 4:00 p.m. on Christmas Eve until 2:00 p.m. on Christmas Day, and in odd numbered years from 2:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day;
(d)in odd numbered years, the Children shall spend time with the Father from 4:00 p.m. on Christmas Eve until 2:00 p.m. on Christmas Day, and in even number years from 2:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day;
(e)in even numbered years, the Children shall spend time the Mother from 3:00 p.m. on Greek Easter Good Friday until 9:00 a.m. on Green Easter Saturday, and in odd numbered years from 9:00 a.m. on Greek Easter Saturday until 4:00 p.m. on Greek Easter Sunday;
(f)in odd numbered years, the Children shall spend time with the Father from 3:00 p.m. on Greek Easter Good Friday until 9:00 a.m. on Greek Easter Saturday, and in even numbered years from 9:00 a.m. on Greek Easter Saturday until 4:00 p.m. on Greek Easter Sunday.
11.For the purposes of these Orders and unless otherwise agreed, changeover shall occur at the Children’s school if the school is in operation, or otherwise at the [Suburb C] McDonalds Family Restaurant.
12. Each of the parties are restrained from denigrating the other parent, or the other parent’s family, and this restraint includes in the presence of, or within the hearing of either child.
13. The Father and Mother shall use their best endeavours to ensure that no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or other parent’s partner or family, either to or in the presence of the Children.
14. The Father shall use his best endeavours to ensure that the Children, or any one of them do not refer to any person, other than the Mother as mother (or any abbreviated form of the word mother).
15. The Father and Mother are restrained from discussing these proceedings with the Children or in the presence of the Children.
16. That the Father and Mother shall ensure that they keep the other informed as soon as reasonably practicable of:
(a) any medical problem or illness suffered by the Children whilst in their respective care;
(b)any occasion that the Children are due to be hospitalised or have been hospitalised;
(c)any medication that has been prescribed for the Children;
(d)any treating medical practitioner whom the Children have seen or will see;
(e)any appointment the Children are due to attend with any medical doctor, psychiatrist, psychologist, counsellor or therapist, so that the other parent has sufficient notice to attend any scheduled appointments;
(f)any social, school or religious functions which the Children are to attend;
(g)the telephone and contact numbers, including both landline and mobile, if applicable.
17. Where any child has any activity, it is the responsibility of the parent with whom the child is with at the time to deliver and collect the child from such activity, and to ensure that the child has all the necessary equipment and accessories to partake in the activity.
18. The Father be restrained and injuncted from releasing or showing any video footage in his possession or under his control obtained of the Mother and the Children for the period June to August 2014.
Affidavit evidence in the father’s case
The father
The father swore an affidavit in the parenting proceedings on 1 November 2016.
By way of general overview it is the father’s case that during cohabitation the mother assaulted him, both verbally and physically. He deposed that the police attended their home 18 times during the course of their cohabitation. He alleged the mother verbally abused the children. The father said he contacted his general practitioner and various organisations to obtain help for the mother. Relevant detail, to the extent evidence of same was provided by the father, I will set out hereunder.
The father deposed to the following incidents of family violence during and following their relationship:
·The mother punched him in 2010 giving him a black eye;
·In 2010 the mother threw a pot at him;
·The mother screamed at him using words including “You’re a fucken mummy’s boy”, “You’re no fucken man”, and “I can fuck you up by telling everyone that you play with the kids down there”;
·In August 2013 the mother threw pots and pans at the father’s car as he was leaving the former matrimonial home.
The father said that in 2010 he was prescribed Lexapro for anxiety and panic attacks. He stopped taking Lexapro in 2011.
The father deposed that the parties separated on 3 occasions: in 2010, 2012, and 2013. He said he attended at the former matrimonial home during the separations to assist with looking after the children. He also said he was attending the home every weekend to undertake yard maintenance and to look after the children. He further deposed that he reconciled with the mother because he wished the children to grow up in a traditional family.
During separations, the father lived with his parents. The father deposed that he would also stay at his parents’ house after an argument with the mother, and at times when the police were called by the mother.
The father said that in May 2014, he attended the former matrimonial home and learnt from his neighbour, Mr W (a witness in the trial), that police had recently attended at the home. Mr W said “I think someone has called them as she is always screaming at the kids”. The father asked the mother why the police had attended and the mother responded “you probably asked one of the neighbours to call them so the cops can harass me”.
In June 2014 the father deposed that he received a phone call from Mr W who said to him “you’d better get down here before she kills one of the kids…she has been screaming at the kids all morning.” The father went to the former matrimonial home. He saw that Y had a bandage on her hand and when he asked Y about the bandage, she responded “Mummy hurt me. She twisted my hand.” The mother and the maternal grandmother told the father it was an accident as Y had run on to the road.
The father deposed that he became concerned about the welfare of his children and made the decision to hire a private investigator to audio and visually record the mother and children in the former matrimonial home. Through these means, the father recorded the mother and children between July and August 2014. The father deposed that he became so disturbed by the footage that was captured, that he contacted FACS on 29 August 2014. He told a FACS caseworker that he planned to take the mother to court based on the recorded footage. He subsequently contacted his solicitors and instructed that an application be filed for the children to be removed from the mother’s care.
On 3 September 2014 the father was arrested by police for arranging that the mother and children be recorded in their home. He was charged under the Surveillance Devices Act 2007 (NSW) (“Surveillance Devices Act”). The father said he believes the mother became aware of the recordings after obtaining access to his mobile phone records and emails without his consent.
The father deposed that he did not see the children for a nine month period between his arrest in September 2014 and May 2015. Following his arrest an interim Apprehended Violence Order (“AVO”) was made for the protection of the mother and children. The father consented to the AVO without admission.
Following his arrest, the father deposed that the mother did not permit him to spend time with the children.
On 12 December 2014 the father pleaded guilty to two charges under the Surveillance Devices Act, firstly to installing or using a listening device to record a private conversation, and secondly to publishing a conversation (sections 7(1)(a) and 11(1) respectively). He was sentenced to two 18-month bonds under section 9 of the Crimes Act 1900 (NSW) and was fined $1,000. The interim AVO was withdrawn.
On 16 March 2015 interim orders were made for the father to spend time with the children every Friday between 4.00 p.m. and 6.00 p.m., supervised my Ms J. The father spent time with the children in accordance with those orders on five occasions between March and April 2015.
On 21 April 2015 further interim orders were made allowing the father to spend unsupervised time with the children for five hours each Saturday, unless otherwise agreed between the mother and father.
On 12 June 2015 the father deposed that he received a call from Mr W. Mr W placed the phone near the fence of the former matrimonial home so the father could hear a dispute between the mother and her sister which was occurring in the backyard. The father called the police.
On 13 June 2015 the father deposed that X told him, “Mummy was dragging me by my feet and arms throwing me on the floor 10 times. She kicked me and spat at me and said to me she is starting to hate me” and “Mummy told me to shut my fucken mouth because I was crying. I was crying because I was bleeding and she hit my leg…” The father deposed that he observed a bruise on X’s leg and her lip was split.
On 21 January 2016 interim orders were made allowing the father to spend time with the children each alternate weekend from 4.00 p.m. Friday to 6.30 p.m. Sunday.
On 22 January 2016, when the father was spending time with the children, he deposed that X said to him:
Dad when we were getting ready to come to you I had some clothes in a bag that I wanted to bring. Mum saw the bag and said to me that I am not taking them with me. Mum grabbed me by the arm and it hurt, she then put on the house’s alarm and took me to the back bedroom. Mum covered my mouth and she threw me on the ground. I hit my back on the bed. Mum kicked me in the tummy when I was on the ground. I told Mum I couldn’t breathe and she said I don’t care, I wish I didn’t have you and I hate you.
The father observed red marks and bruising on X’s back. The father called the police who attended his residence and interviewed all three children. The police told the father that the matter had been referred to FACS but there would not be a JIRT investigation.
During the weekend of 22 to 24 January 2016 when the children were spending time with the father, the father deposed that the children told him they did not want to go back to their mother. He deposed that he did not consider it was safe for the children to return to the mother’s care at the conclusion of their time.
On Monday 25 January 2016 the father was contacted by FACS who arranged to interview the children on the Wednesday of that week. The father attended the interviews at the FACS office. A caseworker at FACS told the father that the mother had filed a recovery order. After the interviews the father’s evidence was that he attended at Suburb R Public School and enrolled X and Y to commence school the following day, and for Z to commence kindergarten the following week.
On Z’ first day of school, the mother collected the children from Suburb R Primary School and resumed care for the children. Thereafter the father deposed that she did not allow him to spend time with the children without an undertaking. The father deposed that the mother has also made telephone communication with the children difficult for him.
The father deposed that if orders are made for the children to live with him, they will live with him at the paternal grandparents’ home in Suburb B, NSW. The house is a five-bedroom home. The father deposed that, as he is self‑employed, he has flexible working hours which can accommodate the children’s school hours. The father would rely on the support of his parents and his sister who lives nearby. The father also deposed to having the support of his partner, Ms P.
Ms P
Ms P is the partner of the father. She swore an affidavit on 1 May 2017.
Ms P and the father commenced a relationship in March 2015. She works full-time as a child care and after school care worker. She has two adult children from a previous relationship.
On occasion, Ms P stays at the father’s home overnight when the children are there. She said that she shares a room with Y and that she helps care for the children by bathing them and helping with dinner.
Ms P deposed to observing the children expressing anger and being “in a rage”. She deposed to an occasion in 2016 where Y began kicking and pushing the passenger seat in the car, and yelling in a very high pitched voice that she did not want Z in the car. Ms P deposed that in January 2016 she observed Z get very angry at Y and X.
Ms P said she the father are planning to marry and purchase a home together in the D area. They hope to purchase a five bedroom home to accommodate the children as well as her children when they are visiting.
Ms O
Ms O swore an affidavit in these proceedings on 18 June 2015. At the time of swearing, she was engaged to the father’s brother. I note here that at the trial, the witness held the surname Leos, however, throughout this judgment I will use the name on this witness’ affidavit.
Ms O works as a client officer for the Department of Family and Community Services (“FACS”). She deposed that she has a very close and trusting relationship with Y, X, and Z.
On 13 June 2015, Ms O was at the father’s brother’s home for lunch and the father and children were present. X went into the kitchen area and told Ms O that, earlier that morning, her mother had “picked me up from my legs and arms and threw me on the floor 10 times. She also kicked me when on the floor and spat on me.” X told Ms O that “Mummy said she was starting to hate me. I could not walk when I got up and I was bleeding from my lip.”
Ms O deposed to having a conversation with the father after speaking with X. The father told her that X had made the same disclosure to him. He told Ms O that he would be contacting his lawyer “to see if I can get the kids” as he was worried about them.
Mr W
Mr W swore two affidavits in these proceedings, one dated 19 June 2015 and the other on 31 October 2016.
In his affidavit sworn 19 June 2015, Mr W deposed that he was the mother’s neighbour when she had resided at the former matrimonial home at Suburb R. His property shared a fence with the mother’s.
On 12 June 2015 at about 10.00 a.m., Mr W deposed that he heard “hysterical screaming” coming from the former matrimonial home. He heard the mother and her sister screaming and swearing at each other. Mr W called the father and placed the phone close to the fence so the father could hear the exchange between the mother and her sister. The father called the police.
In his affidavit sworn 31 October 2016 Mr W deposed that from the time that the mother and father moved into the former matrimonial home, he would often hear a female screaming in a forceful and angry tone, using words such as “fuck” and “dickhead”.
Mr W deposed that he would notice the father had left the home for periods of two to four days after arguing with the mother.
In or around 2012, Mr W saw the father had a black eye and asked him what had happened. The father told Mr W that the mother “went berserk” and hit him.
Mr W deposed that he would regularly hear the mother scream loudly and swear at the children using words to the following effect “You fucken little assholes”; “You little bitch”; “Shut your fucken mouth”; “Get in the fucken car”. On occasions, Mr W said he witnessed the mother slap the children.
When he would hear the mother screaming or slapping noises followed by the children crying, Mr W deposed he would often call the father and tell him to attend the home. Once the father would arrive, the mother would stop screaming and swearing at the children.
On 27 September 2014, Mr W deposed to hearing screaming and slapping noises coming from the mother’s backyard. He heard the mother saying “Don’t do that again” and the child Z, then aged four, replying “Don’t fucken slap me”.
On 30 November 2015, Mr W was speaking to the father when the mother arrived and said she had a fight with another neighbour’s mentally ill daughter. Mr W deposed the children looked upset and were screaming and crying and the father began comforting the children.
On 12 December 2015, Mr W deposed to having seen an argument between the mother and another neighbour. The mother yelled at the neighbour’s 11 year old daughter, “You little retarded bitch. Keep away from my kids.” The mother then said to the neighbour, “Tell your kid to leave my kids alone.” This occurred in the presence of the children.
On 7 February 2015, Mr W was at his home when he heard the alarm at the former matrimonial home being activated. It continued for over one hour although Mr W could see that the mother was inside. Mr W contacted the father and the police.
Mr Leos Snr
Mr Leos Snr is the father’s father and the paternal grandfather of the children.
Relationship between the father and mother
Mr Leos Snr deposed that after the children were born, the arguments he observed between the mother and father escalated and became more frequent. The father, on many occasions, would go to Mr Leos Snr’s home after an argument with the mother.
The father complained to Mr Leos Snr that the mother would not let him see or spend time with the children, or that she would call the police if he did not leave the home.
Mr Leos deposed that it was common for the father to leave the former matrimonial home after an argument and later return due to missing the children.
In or around 2012, Mr Leos Snr accompanied the father to the former matrimonial home. There was an ambulance at the front of the home. He saw the mother approach the neighbour and say “Keep your fucken nose out of my business and stop calling [the father].” The neighbour replied, “Why don’t you fuck off.”
In April 2015 Mr Leos Snr attended a supervised contact visit between the father and the children. He remained for 10 minutes and then left as he did not want to cause problems by being there. He deposed that he had not seen the children for over nine months at that time.
Mr Leos Snr deposed to being aware that the father recorded the mother and children in the former matrimonial home without their knowledge. He acknowledges that this conduct was wrong, but expressed concern about the wellbeing of the children given the material that was recorded.
In January 2016 Mr Leos Snr deposed that the police attended his home to speak with X. X ran into the bathroom when the police arrived looking frightened and worried. Mr Leos Snr deposed that the children appeared relieved when their father told them they would be staying with him for a while.
The children’s visits with the father
Mr Leos Snr and his wife are available on the weekends that the father spends time with the children so that they can provide assistance if required.
During the first few months that the children spent time with the father overnight, Mr Leos Snr deposed that the children would not listen to any of his or the father’s requests and would swear at him and say “fuck off” or “you bitch”. Mr Leos Snr has observed the father disciplining the children when they swear or are not behaving.
The children have behaved better since a routine was put in place for the weekends spent with the father.
Mr Leos Snr has observed the children protesting at the end of their time with their father because they do not want to leave. He has observed the children becoming very relaxed in the father’s company. They tell the father that they love him and miss him.
Mr Leos Snr deposed that he and his wife are happy to continue to provide the father and children with any support they require. The home at Suburb B has five bedrooms and can easily accommodate the family until the father is in a position to move to his own residence. X and Y would share a bedroom and Z would have his own room.
Affidavit evidence in the mother’s case
The mother relied on an affidavit sworn by her on 28 October 2016 in which she deposed to the following.
The mother and children currently live together in a three bedroom rental unit in Suburb Q.
She and the father commenced cohabitation in or around January 2007 and married in 2008.
The mother did not work during the marriage and was the primary carer of the children.
The parties separated approximately seven times during the course of their marriage prior to their final separation in 2014. The mother deposed that on these occasions the father would leave the house without telling her, and would either be at his parents’ home or at the hospital if he was having a panic attack.
The parties then separated on a final basis on 1 September 2014. The father commenced the current proceedings against the mother.
The mother moved to Suburb Q with the children in 2016 to be closer to her support network of family and friends, as well as to avoid conflict with one of her neighbours, Ms K. There had been an altercation between the mother and Ms K which had resulted in the police being called and an Apprehended Violence Order being made for the protection of the mother. The mother believes that the father and Ms K are friends.
The mother also deposed to having problems with another neighbour at Suburb R, Mr W, who gave evidence in these proceedings. The mother deposed that Mr W installed a camera on his caravan to point directly onto her driveway after her final separation from the father. The father would often visit Mr W after the parties’ separation and would peer over the fence into the former matrimonial home in what she perceived to be an intimidating manner.
Since moving to Suburb Q the children have changed schools. Their new school has Greek language and religion classes. The mother deposed that the children enjoy living in their new neighbourhood and living close to the maternal family.
The mother deposed that after separation and until Orders were made for telephone contact between the father and children, the father would call the mother’s mobile phone numerous times each week to speak to the children, and on one occasion when they were ill he called two times each day. The mother told the father, “The telephone calls you’re making to the children is disruptive and they don’t like it. How about if the children wish to speak to you, I will then facilitate the call and call you on your mobile?” The father refused this suggestion.
On 9 May 2015, the mother deposed that X told her “Daddy said our house is bad and naughty. Daddy’s house is good and calmer.”
On 7 June 2015 the mother deposed that X said to her “Daddy called you a liar, mummy.” This was in the presence of the father and the father did not say anything in response to the child or the mother. When the children were inside the home, X and Y said “[Ms N] said you are a naughty mummy” and Z said “Yeah mummy you are a liar and a bad mummy”. Y later told the mother that the father said to her “[Ms S] (godmother) only loves me, X, Z and daddy, and not you mummy.”
On 13 June 2015, after the children had spent time with the father, X told the mother “I want to stay with you, I don’t want to go to Daddy” and “Daddy said to me, that if you scream or smack me, mummy, I need to run outside and go to [Mr W’s] house.”
On 14 June 2015, Z told the mother “Daddy calls you rude and a liar”
The mother deposed that there are other incidences where the children have made similar comments after returning home from spending time with their father.
On 8 July 2015, the mother deposed that X told her the father had shown her a video of the mother screaming at her in the kitchen. The mother asked Y and Z whether they had seen anything and they said they had not.
The mother deposed that she is concerned about the father taking the children to different doctors whilst they are in his care and having them prescribed medication different to that which their doctor has already prescribed them.
The mother says that the father’s behaviour is erratic and unstable, and makes her feel insecure. The examples of his behaviour contained in her affidavit included that in 2012 he cut the cord of the clothes dryer, he placed dirty dishes and pots and pans all over the floor, in 2010 he punched holes in the wall and threw a religious icon at her, in 2011 he spat at her, and he often swore and denigrated her.
The mother deposed that the father would often drink alcohol to excess and has a history of abusing cocaine and marijuana.
On or around 24 January 2016 the father sent a text message to the mother whilst the children were in his care indicating that he would not be returning the children. The mother contacted the police and made a statement, however, the children were not returned to her. The mother spoke to a caseworker at the Department of Family and Community Services and participated in a risk assessment. The outcome of that risk assessment was that the children were deemed “safe” in the mother’s care, although at a high risk of abuse. The report indicated that the children’s disclosures in relation to the allegations of abuse made by the father against the mother were not substantiated. The report indicated that the Department had concerns regarding psychological and emotional harm to the children due to the ongoing conflict between the parents. It further noted that the father “appears to have limited insight into the consequences of his actions on the children.”
On 5 February 2016 the mother and father attended a meeting at the Department of Family and Community Services to deal with the issue of the father refusing to return the children. The mother deposed that this issue delayed her moving from the former matrimonial home to her current residence in Suburb Q.
The mother deposed that the children appeared traumatised and confused by the experience of being withheld by their father. Since that occurred, she observed the children to be clingy towards her. The mother deposed that Y was particularly affected, as she would refuse to leave the mother’s side when dropped off at school.
On 7 February 2016 the mother went to the former matrimonial home to collect her belongings. The locks had been changed so she entered the home through the kitchen window. She tried to disable the alarm but the code had been changed. The mother contacted the police, who indicated that somebody had made a complaint about a break and enter. Action was taken against the mother and she received a fine.
In August 2016, Y told the mother that “daddy said he’s going to call the police on me … If I dob on X to you, he will call the police on me and you.” The mother noticed that Y had begun acting out.
On the following Wednesday, the mother took her to school and Y would not leave her side. The mother took Y to the office and attempted to leave her with the staff. She was distressed and crying, and said “No, no, no!” when the mother attempted to leave. The mother took Y home with her and to a counselling appointment.
The mother has enrolled the children in a program entitled “Seasons for Growth” to assist them with their separation anxiety.
The mother alleged she was subject to domestic violence whilst in a relationship with the father. She has undergone counselling through the MM Group because of the domestic violence perpetrated against her by the father. The mother deposed that their separation and its aftermath has been a difficult time for her. She deposed “I feel I am always on alert, not knowing when he would raise further false allegations against me, or use the children to fabricate allegations against me. I accept this has and could affect my parenting capacity of the children…” She has engaged with a number of therapeutic groups and has completed psycho-educational and therapeutic domestic violence courses.
In relation to the single expert report, the mother deposed that she has taken the expert’s advice on board and has continued to engage with support services and has completed parenting courses.
The mother deposed that the father refused to assist her in the home and would belittle her when she asked for help or when she was assisted by her mother or the paternal grandmother.
The mother denied that she had punched the father on his head in or around July 2010 as alleged by him. She said that on that occasion, the father had driven the car up a side ramp which punctured the tyre. The children were in the car and began crying. The father got out of the car and walked along the M5 motorway, leaving the mother and children stranded. The mother had to call the father’s brother and brother-in-law to assist.
The mother deposed that the father smoked marijuana regularly and was a cocaine user when she met him.
Oral evidence
The father
In evidence in chief, the father was asked whether he had, in 2014, installed a surveillance camera in the former matrimonial home. He agreed that he had done so, and had obtained recordings of the mother interacting with the children on 30 July, 31 July and 1 August 2014. The father then, through his counsel, sought to tender the surveillance tapes and a transcript thereof. That tender was objected to. As it transpired it became unnecessary to determine that matter as the mother largely conceded the behaviour which the father claimed to have captured on the surveillance camera.
The father gave evidence that he has been in a relationship with Ms P for approximately two years. She does not live with him, however, they see each other every day. When the children are with the father, they also interact with Ms P. She assists him with the children, in that she baths the twins, while the father baths Z. The father said that within three months, he proposes to share a residence with Ms P. At the time of the trial he was living with his parents.
The father was asked whether he would consider moving closer to where the mother and children live if the Court makes an order for the children to live primarily with the mother. The father was uncertain about that and raised the difficulty of travel to and from his work, and similar problems for his partner Ms P.
The father was cross-examined by the Independent Children's Lawyer. He agreed that he and the mother had separated three times prior to the final separation. Those separations, he said, occurred in 2010, 2012, and 2013. He said they reconciled because he had an ambition to raise his children within a family environment. He agreed that between 2010 and the final separation, there were many disputes and arguments with the mother. He said the disputes mainly took place at a time when the children were asleep. He agreed that the police attended at the former matrimonial home on many occasions (he estimated at least 18 occasions). The police were predominantly called by the mother. The father agreed that he had punched a wall in the home, causing a hole to be made (other evidence suggests it may have been two holes), and he agreed the children had seen that damage.
The father was asked about a period where he did not see the children for nine months. He said he was arrested in relation to the surveillance tapes at the commencement of that period.
The father was asked about paragraph 36 of his affidavit, where he said the mother had assaulted him, causing him to sustain a black eye. He said he was comforting a child at the time. He was lying in bed with one of the twins because she was having a nightmare.
The father agreed that in April 2010, he and the mother had three children under the age of two. At that time, he was working from 8.30 a.m. to 4.30 p.m. each day.
The father was asked about paragraph 100 of his affidavit, where he alleged that the mother had “hacked” his mobile phone. He said he was critical of her for doing so.
When asked about the current arrangements for the children whilst in his care, he said that they reside with him at his parents’ home, which consists of a five bedroom property.
In relation to communication with the mother, the father said that he communicates with her predominantly by text message.
The father was asked about his proposal for schooling of the children, and he said that he would enrol them in Suburb R Primary School, where they had previously attended prior to being removed by the mother. They last attended that school in January 2016. The father agreed that he had not considered any relevant matters about whether it would be in the best interests of the children to move schools.
In relation to cutting an electrical cord on a dryer in the former matrimonial home, the father agreed that he had done so because he said it was about to “blow up” and the mother refused to cease using it. He said it was necessary because it was making a noise and was smoking.
The father denied he had thrown plates on the floor during their cohabitation, but said he placed the plates on the floor because “they had been unwashed for two weeks”. He agreed that his actions were “stupid”.
He denied he spat on the mother or left her without a car at Suburb G shopping centre.
He agreed that he had changed the locks on the former matrimonial home on 6 February 2016 after a Court Order had been made in his favour. He agreed the mother was charged with trespass on 7 February 2016 as a result of her attending at the former matrimonial home to collect her belongings.
The father said that he attended the “Keeping Children in Mind after Separation” course. It was a five week course, with attendance on one evening per week.
The father denied that he had told the single expert that the mother had schizophrenia. (However, I note the single expert in oral evidence said the father did use that term.) The father said he told the single expert that “things were not right” in relation to the mother’s mental health. He said he does not know whether the mother suffers from a mental illness, however, he believes she is suffering from something.
In relation to the children spending overnight time with him, he was asked about his parents’ statement to the single expert that the “children sleep where they like”. The father said they have their own room, but sometimes Z wants to sleep with him.
The father asserted that communication between himself and the mother consisted of good times and bad times. He asserted they have been able to have a conversation about the children. He said the mother tells him when the children’s soccer games are on and he attends those.
The father said the mother and his partner Ms P know each other because Ms P was one of the children’s kindergarten teacher.
The father admitted that he would swear at the mother, but claimed not to have done so in the presence of the children. He denied an incident in 2014 where it was said he put a pillow over X’s face. He denied that he had ever recorded his telephone conversations with the mother. He said that he still has concerns about the mother’s ability to care for the children properly. He asserted that he had only ever hit one of the children on one occasion, and that was one of his daughters when she ran across the road. He agrees he could be described as spoiling the children. He denied he had any difficulty controlling the children. He denied he made negative statements to the children about the mother.
The father said his parents’ residence (where he is currently residing) is 57 km from the children’s school. It generally takes one hour to travel between the home and the school, or three hours in peak traffic. The current changeovers at Suburb AA each Sunday involves 20 minutes of travel from his parents’ residence to the changeover point.
The father was cross-examined by the mother’s counsel. He denied that he had restricted the mother’s access to money during their cohabitation. He asserted that he had paid the mortgage “and for everything”.
The father was asked about payment of child support. He said he had approached the Child Support Agency in March 2016 and objected to the child support assessment. He denied he owed $8,578 in child support, and said he was paying $200 per month.
The father was asked about drug screening which he had undertaken. He said he had attended on his doctor in November 2014. A copy of the test became Exhibit M2. The test record indicated that, on the initial screening, it was positive for opiates and cocaine. He required further screening and that further screening showed positive only to opiates. The father explained this as pain relief for dental work that he was undertaking at the time. The father said that he had voluntarily subjected himself to this testing when it had been alleged that he was using cocaine. It follows that he would be unlikely to subject himself on a voluntary basis to such testing if he believed it would have proved positive to any illegally ingested substance.
The father denied the relationship between he and the mother was unhappy in its inception. He said that he worked following the birth of the twins and that he had participated in their care. He agreed that following the birth of the parties’ son Z it was difficult for the mother to cope with three very young children. The father said he was concerned that she might have suffered post‑natal depression and sought assistance for her.
The father agreed that he had made numerous reports to the Department of Family and Community Services in relation to the mother and her parenting of the children.
The father was taken to a report in a police file which was dated 31 July 2010. He was asked what had occurred on that occasion. He told the Court that the mother was verbally abusing him about himself and his family, and he punched two holes in the wall and took his car keys and left the home. He agreed he was arrested by police. He denied he had thrown an icon in the home.
The father was asked to name the children’s current teachers and he was able to do so readily.
The father denied that he told the children they would soon be living with him. He was asked about the children calling his partner “mummy” and he said that had not occurred in front of him.
The father was asked about the recommendations contained in the expert’s report, and in particular, her assertion that the children would feel significant distress and loss if their residence was changed. The father said he did not agree that would occur.
The father was asked why he had changed his mind about the amount of time and the circumstances in which the children should spend time with their mother if they were predominantly living with him. He said things had changed since the final separation and that communication between the parties has improved. The father has had an opportunity to see the children and has concluded that they appear settled and happy. He believed that the conflict between himself and the mother had settled to some extent.
The father was asked about the relationship between the mother and the paternal grandmother. He agreed that during cohabitation, the paternal grandmother had visited the house frequently, but asserted this had occurred at the request of the mother. He agreed there had been a falling out between the two women.
The father was taken to page 56 of the expert’s report, which recommended that he should undertake a course of instruction with the BB Group. The father said he had already done that. In relation to the recommendation that he receive counselling as an individual, he said he had not done that, nor had he undertaken the “PPP” or the “Magic 123” courses because those courses were conducted during business hours and he had not been able to afford the time off from work to undertake the courses.
The father conceded that he did not have fears for the safety of the children at this time from the mother’s care. He also said that in relation to communication between the mother and father, there had been an improvement in relatively recent times such that the mother had contacted him and asked him to help out with a problem at the children’s school. He now sees the mother at changeovers and also at soccer matches.
It was put to the father that he had not undertaken a drug test, pursuant to Court Orders, within 48 hours of being requested so to do. He denied that and said that he had immediately approached his doctor to obtain a referral for the testing, however, that was on a Friday and the testing facility was not open until Monday morning where he attended.
The father was re-examined by his counsel. In re-examination, the father said that at the time he received the first child support assessment, he was paying $500 per week on the mortgage of the former matrimonial home. That was in March 2016. He also was paying rates and other outgoings on the former matrimonial home. The first child support assessment required a payment of $78 per week. In June 2016, it increased to $330 per week at a time when the husband was earning about $600 per week. He had lodged an objection to that assessment, and it was still being considered by the Child Support Agency. He has, during the last two months, made payments of $200 and $150.
Mr W
Mr W was required for cross-examination in relation to the affidavits he swore on 19 June 2015 and the other on 31 October 2016. He has resided in the property immediately adjacent to the former matrimonial home for a long period of time and certainly during the period the mother and father resided there. He conceded that the father is a very good friend of his. He did not recall seeing the mother at any time playing with the children, nor did he recall seeing her interact with them in a loving manner.
Mr W was cross-examined by the mother’s counsel. In his evidence, Mr W described the interaction between the mother and the children. He considered she was a “very bad person”. He also said “I have never seen anything like it” when referring to the interaction between the mother and the children.
There was considerable cross-examination of Mr W about an apparent disparity in the length of an affidavit that he had completed in 2015 and the affidavit which was read for the purpose of the trial. He asserted that the 2015 affidavit had portions missing from it, and the affidavit he had signed then was much longer. At a later time during his cross-examination it emerged that he had in fact signed another affidavit which contained a great deal more content than his 2015 affidavit. Any attempt, therefore, to attack his credit based on the disparity in the length of the two affidavits upon which he was cross-examined thereby evaporated.
It was put to Mr W that he did not hear the mother scream the following words directed to the father “You better come in and bath these kids”. He said he did hear those words. He asserted that he heard her on many occasions use words similar to “do you want another one” when addressing the children.
It was put to him that the contents of paragraph 16 of his affidavit, which asserted that he heard screaming and swearing as a regular occurrence, was inaccurate. He denied that. He said “It happened every day. I can guarantee.”
It was put to the witness that the words ascribed to the mother by him in his affidavit (in particular paragraph 22), were not said. He affirmed that they were. It was put that he did not or could not hear slapping sounds that were consistent with a child being slapped and then a child crying. He replied “I definitely did hear them”. He denied the assertion that the mother never swore or screamed at the children. It was put that the conversations in paragraph 35 (questioning the children about what their father had said to them) and 36 of his affidavit never occurred, and that the words attributed to Z in paragraph 38 (Z saying to his mother “don’t fucken slap me”) were never used. He denied all those propositions. It was put that the conversations in paragraph 61 (mother yelling at neighbours child “you little retarded bitch.”) and 74 (mother screaming “get inside you three monkeys!”) of his affidavit did not occur. He denied that.
Mr W was asked about the installation of surveillance cameras on his property. He said that he had never installed surveillance cameras, he had installed “dummies” which suggested there was a surveillance camera. As will be seen in my assessment of credit in these reasons, I found this witness to be a compellingly believable witness and I accept his evidence without reservation.
Mr Leos Snr
Mr Leos Snr, the paternal grandfather, was asked in cross‑examination by the Independent Children's Lawyer whether he has observed the father discipline any of the children. He replied that he had, and he said he has observed the father sits down with the children and explain to them that their behaviour was “not good”. He also said he had seen the father sitting and speaking to the children when they were resistant to returning to their mother’s care.
Mr Leos Snr was cross-examined by the mother’s counsel. He said he had never seen the children smacked by the father. He observed that the father disciplines the children by talking to them and pointing out where their behaviour was wrong. He observed that they mostly complied with his oral requests.
The witness said that when spending overnight time at his home with the father, the children go to sleep at about 8.00 p.m., sometimes 9.00 p.m. Occasionally, if they are watching a movie, they might go to bed as late as 11.00 p.m.
When put to him that the children sleep where they want, he replied that each child has their own room, however, they may sleep where they wish. He denied it was a free and easy household.
The mother submits there is no evidence of the value of the former matrimonial home at the time of cohabitation commencing or the date of the marriage. The mother says that if any value is to be attributed to the property at the date of cohabitation then it should be $210,000 “given that $140,000 was borrowed to pay the father’s two siblings $70,000 each and if the father’s share was added that would total $210,000”.
I do not accept that a retrospective market value for a property can be determined in the manner submitted by the mother. Even if that was the case the mother has made no allowance for the mortgage which had to be refinanced in 2008.
Cross-examination of both the father and Mr Leos Snr did not canvass the mother’s assertion that $70,000 of the purchase price, of the equity in the former matrimonial home, was effectively a gift to the father.
The evidence of Mr Leos Snr in his affidavit asserted that the house was purchased by he and his wife in 1993 with the advance of funds from his brother-in-law Mr AB. (Evidence from the father’s affidavit is that the property cost $143,888 plus stamp duty and costs of $1,735.41. A loan of $85,623.41 was provided by Mr AB.) The property was purchased in the name of the father. Funds were borrowed from a bank and from Mr AB. Between 1993 and 2008 improvements were made to the property funded by the father’s parents and further borrowings from the bank.
Mr Leos Snr gave evidence that in 2008 the property was encumbered by a mortgage to a bank in the sum of $120,000 and Mr Leos Snr said he still owed his brother-in-law $85,000. He said he had agreed to sell the property (really his equitable interest) in the property to the father for $210,000. To that end the arrangement, all verbal, was for the father to take over the responsibility for the mortgage on the property and raise a further $140,000 to be paid to Mr Leos Snr and his wife. There was to be a further payment of $70,000 at a later time. Other evidence, including a copy of the caveat entered against the property by Mr and Mrs Leos Snr suggests the payment was to be made upon sale of the property.
None of the evidence of the father corroborates the evidence of the mother that there was a three way gift made by Mr Leos Snr and his wife to their three children of the sale price received by them in 2008. It was not put to either the father or Mr Leos Snr that was the case.
The father’s evidence is that he borrowed $290,000 from St George Bank and paid the following sums: $120,000 to pay the existing mortgage; $140,000 to his parents; $20,000 on renovations and $10,000 for wedding expenses.
The father says the balance of the purchase price was a loan from his parents of $70,000.
The consequence of the father’s evidence is that a total borrowing of $330,000 was required to purchase the equity in the former matrimonial home from his parents and pay off the then existing mortgage. The father also said that $360,000 was the upper limit of the value of the property which he and his father, Mr Leos Snr, agreed upon. However, the father’s evidence was that his parents agreed to sell him their beneficial interest in the property for $330,000.
I do accept the evidence of the father and Mr Leos Snr about the circumstances of the acquisition of the former matrimonial home in 1993 and then the sale of the equity in that property to the father in 2008.
The conclusion from all the above is that in 2008 when the equity in the property was acquired by the father, the whole of the purchase price had been borrowed and therefore he did not bring any value from that property to the marriage.
The only other alternate version of fact is that of the mother who asserts that the father really brought equity of $70,000 to the marriage as there was never a loan owed by the father to Mr Leos Snr. The mother’s version is demonstrably wrong as she asserted the property had been purchased by the father’s siblings and the parties acquired the property from them.
I do accept the evidence of the father and Mr Leos Snr on the issue of whether the above referred to $70,000 was a loan or a gift. I do so because I have preferred the evidence of the father in this matter over that of the mother for the reasons stated earlier. I also accept the evidence of Mr Leos Snr. Further, it was really against the interests of the father to argue the position that he brought no equity in the former matrimonial home to the marriage as opposed to $70,000 which represented about one third of the equity in the property at that time.
Father
I find therefore that the father brought the following assets to the cohabitation and marriage:-
H Street, Suburb R $ value unknown. (Possibly $360,000 as agreed between the father and his father)
Furniture $ value unknown.
Motor vehicle $ value unknown.
Boat $ value unknown.
Bike $ value unknown.
Superannuation $11,000.
Liabilities
St George Mortgage $290,000
Liability to his parents $70,000
Personal Loan Credit Union $12,000
The father’s counsel acknowledged that there was no evidence of value of the property at the time of cohabitation. There is, however, a history of acquisition which informs the Court as to financial contributions to that acquisition.
Mother
The mother did not say what she had as an initial contribution in her affidavit. She was a member of a superannuation fund, however, any growth in that appears to have developed because of the return on investment in the fund.
The father did set out in his evidence what he asserted the mother had at the date of cohabitation. He said her assets and liabilities were as follows;
Assets
Personal belongings $10,000
Furniture $2,000
Superannuation $Unknown
Motor vehicle $10,000
Liabilities
Credit cards $unknown
Personal loan $unknown
On 28 August 2007 the mother was awarded $10,000 as victim’s compensation. At that time I am satisfied the mother and father were living in a de-facto relationship.
The mother’s counsel asserted that she had a superannuation entitlement of some $20,000 at the commencement of cohabitation, however, the evidence does not enable that conclusion. It matters little because the mother has not worked since the twins were born and therefore all the contributions made by or on her behalf must have accumulated prior to the early part of the cohabitation.
It might be argued that the values attributed by the father to the initial contributions by the mother are an admission against interest. However, the Court has to give weight in a fair, just, consistent and equitable manner. The values given by the father to the mother’s initial contributions I consider cannot be given any real weight as evidence of the actual value of that property at the time of cohabitation. He demonstrated no expertise in valuing any of the items which he attributed a value to. Further, I have not permitted the father to rely upon his own evidence as to the value of the items of property he brought to the cohabitation. Again, the initial contributions of the parties are seen by me to be minor when compared to the contributions made by the parties during the cohabitation and since separation.
I do give weight to the fact that the mother brought items of household furniture and personal belongings together with a car to the marriage. I give similar weight to those same types of initial contributions which I accept the father brought to the cohabitation.
Contributions to date of separation
The father
Following the cohabitation commencing in 2007 and until October 2008 when the parties moved to the former matrimonial home following the completion of renovations, the parties lived with the father’s parents. The father says that was rent free and I accept that was the case. This then becomes a contribution made on behalf of the father.
I find the father contributed his income to support of the family and meeting the expenses associated with servicing the mortgage on the former matrimonial home and the outgoings during the cohabitation. The father included a tabulation in his affidavit of the payments made by him on the mortgage both during cohabitation and since separation. No challenge was made to that evidence.
The payment of the mortgage and outgoings by the father during the cohabitation must have come from his income and that which the mother contributed in the early stages of the cohabitation, there being no other assertion made to the contrary. I have included as a contribution the income earned by the father during the cohabitation and so I do not count it again when considering the payments made on the mortgage during that time.
The father claimed a contribution as a home maker and parent. He claimed involvement in the care of the children, however, he conceded the mother fulfilled the major part of those categories of contribution during the cohabitation. The mother conceded that when the twins were born, the father did play with the children, but she said it diminished with time. She agreed that there were occasions where he fed and bathed and played with them.
In or around September 2013 the father was made redundant and received a redundancy payment of approximately $10,000 which he applied towards the household expenses until his return to employment shortly thereafter.
When the equity in the former matrimonial home was purchased by the father, renovations were carried out at the property. That included tiling work which was provided by Mr Leos Snr at no cost to the parties.
The mother conceded the father was helpful when at home out of work hours. On weekends he cooked a barbeque. She asserted he washed the dishes 16 times over the cohabitation, which I have found to be some seven years.
The father deposed to having made contributions in the nature of maintaining the front and back yards by cutting grass and pruning plants. He did general repair work including re-painting surfaces in the house damaged by the children. He did clean the interior living rooms and bathrooms on Saturdays. I accept the father’s evidence of having made that contribution.
The mother
The father asserted that prior to the mother ceasing employment in April 2008 she contributed approximately $3,000 to $4,000 towards the home loan secured over the former matrimonial home from her earnings and resources. This is consistent with the mother’s evidence where she said she contributed $1,000 per month to the mortgage until she ceased work.
The mother’s parents paid for the wedding which the mother believes was in the order of $35,000. It is always a matter of debate whether the cost of the wedding paid for by the parents of one or both of the parties is a contribution made on behalf of one only or whether it is a contribution which should be considered at all. For that reason I propose to avoid controversy and take this matter into account, primarily on behalf of the mother, under s 75(2).
The mother’s father paid $5,000 for new carpets and blinds for the former matrimonial home in late 2008.
In her written submissions the mother claimed a contribution towards the purchase of the equity in the former matrimonial home. I accept that the mother has made a contribution to the servicing of the mortgage and the meeting of the expenses on the former matrimonial home since cohabitation by virtue of all the contributions made by her to the marriage.
It was put to the mother that her parents contributed no more than $5,000 to the cost of the renovations of the former matrimonial home in about 2008. She asserted that they contributed about $20,000. No evidence of that was provided by the mother in her trial affidavit nor was there any corroborative evidence from her family.
The twins were born in December 2008. The mother worked and contributed her income towards family expenses until that time.
The mother has contributed as a home maker and parent since that time. I am satisfied the mother provided the majority of the care for the children during the cohabitation. I am also satisfied she carried out most of the tasks as homemaker for the family.
Section 79(4) contributions post separation
The father
The father paid the mortgage and outgoings on the former matrimonial home post separation. His evidence is that he paid not less than $68,512 post separation. In order to pay that sum the father had borrowed $32,000 from his uncle Mr AB. The evidence is that the mortgage payments are $507.92 per week. The evidence of payment in the father’s affidavit is up to August 2016. There was no evidence of arrears as at the date of the hearing and I will assume in his favour that the father has continued to meet the mortgage instalments.
The father increased the mortgage on the former matrimonial home to $398,376 in 2015. He used the funds (about $70,000) to pay creditors for his business and acquire a business motor vehicle (about $20,000) which is in the trial balance sheet as an asset.
The father has paid child support, however, he is in arrears the mother says to the value of $7,600. I will still consider that as a contribution because I will frame an order to the effect that the arrears at the time of the sale of the former matrimonial home will be deducted from the father’s share of the sale proceeds.
The father’s evidence about payment of child support is that the first assessment he received required a payment of $78 per week. The second assessment which he received in June 2016 required a payment of $330 per week. The father said he could not afford that. He said he was paying the mortgage at the rate of $500 per week at that time. At that time he said he was earning about $600 per week. The father’s tax return for the 2016 year is set out at page 147 to his affidavit. That shows a taxable income of $21,420. However, his employer at the time was UU Pty. Ltd. Which is the corporation owned by the father and no tax return or annual accounts for that company were annexed to the affidavit, nor were such documents called for during the trial.
The stated income of $21,420 represents a weekly income of $412 before tax.
Post separation and until September 2014 when he was restrained from approaching the former matrimonial home the father continued to carry out maintenance work on the former matrimonial home including mowing lawns, cleaning the yard area and repairing damage to the house when required, including fixing the sewer blockage in early 2014.
The mother
The mother made no specific submission about this period of contribution, however, the evidence is clear that she has made a very significant contribution post separation.
The mother has been the parent providing for most of the care of the children post separation. The father’s contribution has been during the times he has spent with the children post separation.
Between mid-2014 until towards the end of that year the father spent no time with the children.
Conclusion based on contribution
The mother submitted that the parties’ contributions during the cohabitation should be assessed as equal. She submits that her major contribution was that of home maker and parent and that contribution, together with the monetary contributions which she has identified, should be assessed as equal to the financial and other identified contributions of the father.
The father has not made a submission in percentage terms about assessment of contribution. He submits the final division of the sale proceeds of the former matrimonial home should favour him 70% to 30%, however, he had included in that the assumption he would be the major carer for the children into the future. He was also clearly asserting a significantly greater initial contribution than the mother. I have concluded that is not the case.
All in all I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage of either of them, including such property which is no longer the property of the parties to the marriage or either of them, to be equal to the date of their separation. I asses their contributions to the date of hearing as also being equal. In so doing I have considered the major contribution of the father to the maintaining of the mortgage payments and his other contributions identified in these reasons as no greater than the contributions of the mother as the carer of the children.
Section 79(4)(d), (f), (g)
The matters identified in the above sections I have considered below under the s 75(2) heading.
Section 75(2) considerations
The father is aged 42 and the mother is 43. There is no evidence to suggest either party has any physical or mental illness which would interfere with their ability to earn an income.
The assessment of contribution sees the father receiving $111,900 worth of net assets and the mother $111,900 worth of net assets. The father has liabilities which he will retain and pay same from his share of the matrimonial assets.
The mother will have the major responsibility for caring for the children into the foreseeable future. During school term the father will have the children for between two and five nights a fortnight and half of school holidays. Given that there is a difference between two and five nights per fortnight I consider it probable that within the space of 12 months from the date hereof the father and mother will have arrangements in place which see the father having at least four nights per fortnight.
The father now works under the business name UU Pty Ltd. He works as a contractor. He conceded that his income was about $812 per week. That income is derived as a wage of $412 per week and drawings from the company of $400 per week. No financial documents relating to the company’s position were placed before the Court.
He asserted that he is paying more than $30 per week in child support. In his Financial Statement which was sworn in November 2016 he said he was paying $78 per week child support for the children. He also claimed the Child Support Assessment required a payment of $78 per week. In addition the father said he paid $75 per week expenses for the children. I have assumed that refers to expenditure paid by the father during the time the children are in his care.
The father has the benefit of a new relationship with Ms P. They plan to marry. She is a school teacher and thus she will have her income to contribute to the relationship. Details of her income are not in evidence, however, it is reasonable to assume she will not be drawing more out of the relationship financially than she contributes. That is, there will be a financial benefit to the father of some degree.
The father will probably be required to pay child support following the orders made herein because of the difference of the time each parent will have the children in their care and also because of the parents’ incomes which are considered for the purpose of calculating child support.
The mother will receive the payment of arrears of child support from the father’s share of the sale proceeds of the former matrimonial home. When the matter was before the Court for the trial, the father still had an objection to the last Child Support Assessment being processed. That may or may not give rise to a re-calculation of the child support arrears.
The mother was at the time of the hearing undertaking a course to become an educational support worker. She was then participating in “prac-work” of 100 hours on a voluntary basis. She has been offered a job when she finishes the course. She would work during school hours. She expected to complete her course at the end of 2017. No detail of income which the mother might expect was provided. It is reasonable to conclude that the position is not highly paid.
Each party will retain their superannuation entitlements. Into the future, though, the father will have a greater capacity to increase his superannuation entitlements because he will continue to work full time in his business, however, the mother will be restrained by either having to work in school hours and days or engage out of school care for the children on the days the father does not care for them pursuant to the parenting orders.
The mother occupied the former matrimonial home with the children post separation until orders were made for her to vacate the home in January 2016. By 6 February 2016 when the father visited the property she had apparently vacated.
The father has had possession of the former matrimonial home since 5 February 2016. The mother had the exclusive occupation of the property from separation (2013) until 5 February 2016.
When the father obtained access to the former matrimonial home on 6 February 2016, pursuant to an order of the court, he deposed that all of the contents of the house had been removed by the mother with the exception of an outdoor table and chairs, a bed and the spare fridge located in the garage. He said his tools which had been in the garage when he was last there in September 2014 had been removed. He listed a large number of tools which were missing.
The mother denied she had removed the father’s tools.
I am unable to find that the mother has the father’s tools which he had left at the former matrimonial home. I do accept, however, that the tools were there as he asserts and I also accept his inventory of what was left in the former matrimonial home in the nature of household contents. I can and do take into account that the father will have to acquire furniture and household goods to equip a home for himself and, further, he will have to replace his lost tools.
The father said the mother caused damage to a garage door and the alarm system when she attended the property on 6 February 2016. He will incur cost to repair the damage.
The property has been vacant since February 2016 as the father says he cannot afford the cost of repairing the property so it is fit for occupation by tenants or for sale. No challenge was made to that assertion by the father. The mother did not submit that the Court should conclude the father should/could have repaired the property sufficiently to rent it and thereby defray the cost of the mortgage payments he has continued to make.
During the cohabitation the father increased the mortgage debt. He increased the loan to $300,000 in 2011; to $336,000 in 2013 and to $398,376 in 2015 (post separation). The 2013 increase the father says was undertaken with the mother’s approval so he could pay a debt to his lawyers. This occurred when the parties reconciled in 2013. I take into account here, on behalf of the mother, that the increase in the loan of about $30,000 at the time went to pay the father’s lawyer.
The father has an entitlement to superannuation which has a value to him of about $20,973 at the time of the hearing. There is no evidence showing what the entitlement of the father was to superannuation when the cohabitation commenced and finished. I can only conclude that probably some accumulated before and during the marriage and some after marriage. He will retain that entitlement.
The mother had a superannuation entitlement of $34,847 on the balance sheet. She will retain that benefit.
The father has legal costs to pay, incurred to the end of the trial. The father provided evidence via correspondence to the Registrar of the court as directed by the trial directions. The court record shows therefore that the costs incurred to the last day of the trial was $60,762.50. The father has paid $28,262.50 in legal costs and has provided a further $11,4512.50 on account of the trial expenses. He may have paid an additional $10,000 prior to the trial as the letter dated 18 November 2016 envisaged.
No evidence of legal costs was provided by the mother. I have assumed that arises from the mother having a grant of legal aid for the hearing.
The mother’s parents paid for the wedding which the mother believes was in the order of $35,000. It is always a matter of debate whether the cost of the wedding paid for by the parents of one or both of the parties is a contribution made on behalf of one only or whether it is a contribution which should be considered at all. For that reason I propose to avoid controversy and take this matter into account, primarily on behalf of the mother, under s 75(2).
Post separation the father has extended the liability he has to Westpac Banking Corporation Ltd Bank. He borrowed a further $70,000 secured against the former matrimonial home. That raised the liability from $336,000 (as at October 2013) to the current balance of nearly $400,000, and which now stands at $390,000.
The father has used the additional funds to meet business debts and $20,000 of the loan to pay off the balance he owed on his business vehicle.
The business motor vehicle is in the balance sheet as an asset and therefore any liability for the purchase of the vehicle should also be taken into consideration in the balance sheet, however, it has not been included so I take that into account here.
However, the part used to meet business debts of almost $40,000 should remain the responsibility of the father for a number of reasons stated as follows:
·The father has had all of the income from the business.
·The father is claiming a contribution for the mortgage payments made by him post separation. Part of the contribution claimed by the father therefore would be for payment of his creditors accumulated post separation.
I will take that matter into account on behalf of the mother.
The father has other debts which are not included in the balance sheet. They include a debt to CD Pty Ltd of $43,000 (trade creditor); Flexi or Personal loan from Westpac Banking Corporation Ltd of $11,250 and loan from Mr AB of $32,000 which the father has used to pay the mortgage post separation.
Conclusion on section 75(2)
The mother submits that there should be an adjustment of 10% to reflect the balance of s 75(2) considerations which fall in her favour.
The father submitted that a division of the sale proceeds of the former matrimonial home 70% to the father and 30% to the mother will represent a just and equitable division of the parties’ assets.
Neither party made a submission about the superannuation, consequently I am assuming, they each seek they retain that superannuation which they currently hold. No splitting order was sought.
For all the reasons referred to above I determine there should be an adjustment in favour of the mother of 10% as submitted by her.
In reaching that determination the matters to which I gave greatest weight are as follows:
·The mother’s ongoing primary care of the children.
·The differences in the parties’ incomes now and as are likely to be the case over the next few years.
·The father’s ongoing requirement to pay child support.
·Each party’s exclusive occupation of the former matrimonial home.
·The fact that the father used the increase in the mortgage debt in 2013 to pay his lawyers’ invoice for acting for him in his family law proceedings against the mother.
·$30,000 of the assets in the balance sheet represents a payment made by the husband for legal fees sourced from the parties’ further borrowings.
·The additional borrowing of the father to pay $50,000 worth of business debts and personal expenses. This was almost in the nature of an advance of division of property.
·The father has a significant liability for legal costs which the mother does not have.
·The father retains debts which will need to be paid and which have not been included in the balance sheet.
·There is a small pool of assets to divide and the father will be unable to meet all his liabilities from his share of the sale proceeds unless the former matrimonial home sells for more than the agreed value in the balance sheet.
Sections 79(9), Overall division of assets
The above determination will see the mother receive 60% of the parties’ assets and the father receive 40%.
Just and equitable
The division of assets would see the mother receive $134,280 worth of net assets and the father receive $89,520 worth of assets. The mother therefore receives $44,760 more than the father in net assets.
In the circumstances of this case I determine that result to be just and equitable.
Orders which should be made
I propose orders which will give effect to the following division.
The mother will receive:
| Assets | ($) |
| · Household contents | $5,000 |
| · SUV | $16,800 |
| Total Assets | $21,800 |
| Total Liabilities | $Nil |
| Net Assets | $21,800. |
The wife is entitled to receive $134,280 from the net assets. She already retains $21,800 and consequently she has to receive $112,480 from the sale proceeds of the house.
The equity in the former matrimonial home is $615,000 less the mortgage of $390,000 leaving a balance of $225,000. The mother is to receive $112,480 of that amount which represents close to 50% and which I will set at 50%.
The orders need to be expressed in a percentage terms in order to cater for the possibility that the sale of the former matrimonial home achieves either more or less than the trial balance sheet figure of $615,000.
The husband will receive:
| Assets | ($) |
| · Business Vehicle | $12,000 |
| · Household contents | $5,000 |
| · Paid legal fees | $30,000 |
| Total Assets (including superannuation) | $47,000 |
| Liabilities | |
| · Loan to Mr and Mrs Leos Snr | $70,000 |
| Total Liabilities | $70,000 |
| Net Assets | - $23,000 |
The father is entitled to receive $89,520 of net assets. He will need to receive $112,520 which is close enough to 50% and which I will set at $50%.
I certify that the preceding seven hundred and sixty (760) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 8 December 2017.
Associate:
Date: 8 December 2017
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
-
Civil Procedure
Legal Concepts
-
Remedies
-
Costs
-
Jurisdiction
-
Consent
-
Procedural Fairness
-
Statutory Construction
0
0
4