McCALL & McCALL
[2017] FCCA 2923
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| McCALL & McCALL | [2017] FCCA 2923 |
| Catchwords: FAMILY LAW – Property dispute – sole remaining asset being proceeds of sale of matrimonial home – father owning home at start of relationship – offset to take account of father’s wastage – contributions equal – mother having care of children – division of non-superannuation assets 60/40 to wife – each party to retain their superannuation. |
| Legislation: Family Law Act 1975 (Cth) ss.4AB, 11F, 60CC |
| Cases cited: Goode v Goode [2006] FamCA 1346 Rice & Asplund [1978] FamCA |
| Applicant: | MR MCCALL |
| Respondent: | MS MCCALL |
| File Number: | DGC 2141 of 2016 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 19, 20, 23 & 26 October 2017 |
| Date of Last Submission: | 26 October 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moore |
| Solicitors for the Applicant:: | Borchard & Moore |
| Counsel for the Respondent: | Mr Richardson |
| Solicitors for the Respondent: | Lanham Lawyers Pty Ltd |
| Counsel for the Independent Children’s Lawyer: | Ms Elleray |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
The Mother have sole parental responsibility for the long-term care, welfare and development of the children, X born (omitted) 2010 and Y born (omitted) 2010 (“the children”).
The children live with the Mother.
The Father’s time be reserved.
The Mother receive reimbursement for payment of the Father’s share of the former matrimonial home Valuation Report, in the amount of $395.00.
Subject to Order 4, the settlement proceeds currently held in the Respondent Solicitors Trust Account be paid to the parties in the proportion of 60% to the Wife and 40% to the Husband.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the property being deemed to be in the possession of the Husband and Wife);
(b)Insurance policies remain the sole property of the owner/beneficiary named therein;
(c)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
THE COURT NOTES THAT:
A.The Father may be given the opportunity to bring an application in case without being estopped by the Rice & Asplund doctrine.
IT IS NOTED that publication of this judgment under the pseudonym McCall & McCall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2141 of 2016
| MR MCCALL |
Applicant
And
| MS MCCALL |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting and property dispute in which the court has the benefit of the assistance of an Independent Children’s Lawyer. In relation to parenting, the applicant father seeks that the two children with whom we are concerned, X and Y, both born on (omitted) 2010, live forthwith with him and spend time with the mother at times deemed appropriate by the court. In respect of property, he seeks that non-superannuation assets be divided fifty-fifty and that there be an equalisation of superannuation.
The mother seeks an order for sole parental responsibility in her favour and that the father spend supervised time with the children followed by, depending upon the outcome of certain assessments, limited unsupervised time. She also seeks a division of the property pool 80 per cent in her favour and that each party retain their superannuation.
The Independent Children’s Lawyer’s position, ultimately adopted in final submissions by the mother, is that until the father proves to the court he has made appropriate changes, then the children should spend no time with him, that he be given an opportunity to bring an application in a case without being forestalled by the operation of the doctrine known as Rice & Asplund [1978] FamCA. The final orders should have a notation to this effect.
For the reasons that follow, I am going to make the parenting orders sought by the Independent Children’s Lawyer and supported by the mother, and I am going to order that there be a division of funds held in trust in the proportions of 60 per cent to the wife and 40 per cent to the husband, with each party to retain their superannuation and chattels.
Uncontroversial agreed matters
For all the conflict in this case, there are some matters which are not disputed or controversial. The father was born on (omitted) 1974 and the mother on (omitted) 1979. She suffers from multiple sclerosis. The parties commenced cohabitation in 2008 and married on (omitted) 2009. As earlier indicated, X and Y were born on (omitted) 2010. Y has autism. The parties separated on 3 July 2016 when the mother left the former matrimonial home, which has since been sold, leaving net funds of just over $211,000.
The mother obtained an Intervention Order on 5 July 2016, following her departure from the matrimonial home and she returned and lived there until it was sold.
The father has spent a certain amount of time prior to separation effectively living in the garage at the matrimonial home.
Following the father’s initiating application on 18 July 2016, in which he sought a recovery order, the matter was heard in court on 26 July 2016. The family were ordered to attend the following day for a section 11F child-inclusive conference, and interim orders were made after that conference providing for the appointment of the Independent Children’s Lawyer, preparation of psychiatric assessments for both parents, drug screens and post-separation programs, with supervised time arrangements for the children with Mr McCall.
A family report was prepared by Ms B, dated 8 February 2017. At the time of the preparation of that report, she had not received Dr S’s psychiatric report on the father. Following receipt of that report, she expressly indicated to the court in writing that she stood by her original report notwithstanding Dr S’s report. It should be noted that the family report, to which I shall return, recommended sole parental responsibility for the mother and that the time with the father be reserved.
The parties’ affidavit material
The parties have filed a number of affidavits which, in large part, are taken up by the agreed and uncontroversial matters already set out. The additional matters in the affidavits (including minor matters like the mother’s assertion that cohabitation commenced in 2007 rather than 2008) essentially related to the mutual accusations of the parties. The mother alleged that the father was unfaithful and addicted to methamphetamines and that he had assaulted both X and the mother on 21 June 2016.
The affidavit of the mother filed 17 November 2016 dealt with property issues. It noted that the father was still in the home and the mortgage was in arrears. The home was owned by the father at the commencement of the relationship and had a mortgage at that time of $80,000. The mother appears to accept in her materials that there was approximately $240,000 worth of equity in the home at the commencement of the relationship (see wife’s outline of case, page 8 of 12).
The father’s superannuation at the commencement of the relationship was asserted by the wife to have been $150,000. She alleged that in September 2015 the mortgage on the property had been increased to $250,000 and the father had withdrawn and dissipated $150,000 of that amount. She deposed that she had ceased working because of multiple sclerosis and further that Y was diagnosed with high-functioning autism.
Both sides have accused one another from time to time, in their affidavits, of non-disclosure. The mother has filed a very substantial affidavit by her solicitor detailing the extensive correspondence about this matter.
The mother’s further affidavit filed 17 October 2017 asserts that the husband was living from about mid-2015 in the garage and consuming drugs and alcohol. She gave further details of the money allegedly paid into the husband’s (omitted) Bank account in the sum of $213,000 in October 2015.
The mother deposed to a dispute on 28 February 2016 when she allegedly overheard the father talking to some other woman, which gave rise to a dispute and an alleged assault upon her. She asserted alleged assaults throughout the relationship. She further deposed to cash withdrawals by the father from October 2015 till February 2016, an accumulated sum of $144,500.
She deposed to the parties’ alleged practice of keeping large sums of cash in the house. She had taken $25,000 from the father’s drawer in the bedroom but ultimately replaced it. She also detailed a substantial number of cash withdrawals between August 2014 and June 2016 by the father in the sum of $53,750. She asserted that a lot of money had been applied to what was described as binary trading. She deposed to presently living with her parents but proposes to commence a (employment omitted) position in 2018. She noted the past distribution of interim property payments of $30,000 to each party. Her superannuation at separation was $107,722 and, at 30 June 2017, $130,810. The father’s superannuation had been as high as $63,770 but by 30 June 2017 was $32,000.
It should be noted that the above is a brief paraphrase, effectively a snapshot of the relevant matters in the parties’ extensive affidavit material. I have, of course, had regard to everything they had to say.
The family report
As earlier indicated, the report of Ms B (exhibit M1) is dated 8 February 2017. She noted that the parties commenced a relationship in 2006. She noted the mother’s allegations of the father’s allegedly abusive and controlling behaviour escalating after the twins’ birth to physical violence. She noted at paragraph 4 the father’s alleged paranoid delusional behaviour which the mother equated to his prolific use of amphetamines. She noted a two-year Intervention Order due to expire in July 2018 following the mother leaving the family home with her children to stay at her parents’ home.
Ms B noted at paragraph 6 the finding by Dr S that the mother had a personality dependence but had no impairment of parental capacity by virtue of psychiatric illness. Ms B noted that both parents had completed post-separation parenting programs and that the mother had provided four drug screens as requested by the Independent Children’s Lawyer, all of which were clean. The father had provided results for four screens from five requests, and sympathomimetic amines were present on all four occasions, benzodiazepines once and opiates once also.
On two occasions the father did not produce a sample within 24 hours (paragraph 8 of the report). Ms B noted that the parents had been largely compliant with attending for assessments and programs as directed but that the time arrangements with the father had ceased completely prior to the assessment.
Having noted the mother’s unremarkable home circumstances and the children’s generally successful efforts at school, the report noted that the father had remained in the former matrimonial home. From August 2016 onwards, the children spent time with the father supervised by the Family Contact Service. Ms B noted certain difficulties in the report from Ms L, to which I shall come, and the cessation of time with that supervising service.
Ms B, who had spoken to Ms L, recorded at paragraph 14:
Ms L described the father as being “unmanageable, extremely argumentative and very resistant”. She said on one occasion it was suspected the father may have been withdrawing from drugs and that on the final occasion her degree of concern for the worker’s safety was such she was on the verge of phoning the police. Ms L said the case was generally very difficult to manage due to the level of animosity between the parents, and it was her belief both parents were “using the children as pawns” by talking inappropriately to X and Y and attempting to influence them or what they said.
Having dealt with the applications and proposals of the parties and the issues in dispute, Ms B recorded her interviews with the parties. The father told Ms B that he had completed all recommended programs and assessments directed by the court save for the Men’s Behavioural Change Program which was due to commence shortly, although he disputed the necessity for the latter. He asserted he had completed multiple drug screens requested by the Independent Children’s Lawyer and had not used illicit substances since prior to the section 11F conference in July 2016. He was convicted in 2016 for drug possession and possession of illegal weapons, and Ms B recorded at paragraph 22:
He expressed considerable upset that he now has a criminal record and placed blame for this on the mother, accepting little responsibility for this outcome.
Mr McCall referred to his ongoing assistance from psychologist Mr M, and his view that his suspension of time had had a significantly deleterious effect on the boys but believed this could be repaired if only time arrangements could resume. He asserted (paragraph 24) that any difficulties during contact sessions were the fault of the mother and “expressed a deep frustration his children may have been told not to talk about their lives as they considered they should be able to talk to him about anything”.
He also said, “there have been only two occasions when he made comments to the boys about their mother stopping him spending time with them and this was borne out of frustration as he was convinced the mother was alienating the children from him.”
Paragraphs 25 – 26 of the report recorded:
Mr McCall could not provide any coherent explanation for his repeated lateness to supervised time although accepted this was not helpful behaviour given it is him who is seeking time with the boys. He accepted to some degree there may have been occasions where his communication with supervisors was problematic but he attempted to explain this as misunderstandings of how supervised time takes place and that he felt supervisors were interfering with his time with the boys; Mr McCall said he had been under the impression he would decide where and when visits took place, hence him questioning contact supervisors in this regard.
Mr McCall strongly disputed the content of the last 3 contact reports including Ms L’s affidavit and said the events detailed within were fabricated. He denied having called the contact supervisor a “bitch” or that he yelled at her. He said he did become upset and was crying however he said this was because the children were upset. He denied that he had ignored the boys or acted inappropriately in any way and instead blamed the contact supervisor who he described as being overinvolved with the children and rude. He said he was not an aggressive or intimidating person generally and he believed there had been a mutual agreement with the supervisor to cease time. Mr McCall was very clearly of the view that his time with the boys does not require supervision and wanted to know how he could begin unsupervised time.
The report noted that the father said he has 700 pages of material that would prove that the mother had completely fabricated all allegations and it would prove she was the abuser in the relationship.
The mother was anxious at the start of the interview process. She alleged that the father had continually breached the intervention order and now faced 13 charges in relation to those breaches.
In paragraph 31, it was recorded:
She alleged during phone calls with the boys Mr McCall made numerous references to the children being able to have their toys returned to them “when you come to my house”. This caused X and Y considerable confusion and upset as they could not understand why they could not have these items. It was a challenge for her to provide an age appropriate explanation. She considered these actions to be emotionally abusive and demonstrated a lack of insight on Mr McCall’s behalf.
The mother expressed continuing reservations as to the children’s safety with the father, not least by reference to the weapons and drugs charges he was facing. At paragraph 34, the report recorded:
Ms McCall has suggested that it is possible Mr McCall may never be capable of becoming a reliable, consistent presence in the children’s lives and expressed sadness for the boys should this continue to be their experience of their father. It was her view that the father suffers from mental health issues, particularly paranoia and mood instability. The mother expressed significant concern regarding the erratic nature of the father’s attendance at contact sessions and what the children had been exposed to during these sessions when Mr McCall has become very angry and belligerent.
The mother referred to the children’s anxiety at seeing their father and denied strongly that she speaks negatively about him to the children. She expressed a wish (paragraph 37) that she and the father would eventually reach a stage where they are able to communicate but was not able to do so at this point.
The children were interviewed together and Ms B noted Y’s diagnosis of mild autism. They referred to incidents of violence by the father during the relationship. When observed with the father, Ms B noted that the father struggled to think of any questions other than what the children had been doing in the holidays and at Christmas and struggled to engage in play with the children (paragraph 46).
The father desired to give Christmas presents during his time with the children, but this request was declined so as to not have an undue influence upon them. It was agreed (paragraph 48) that the father could leave presents with reception and the report writer would pass the presents on at the end of the day. As the report records:
Mr McCall repeatedly asked the writer if a present could also be passed on to Ms McCall but was instructed a number of times this was not appropriate and would not be facilitated.
At paragraph 49, the report records:
It later transpired that Mr McCall had included the gift for Ms McCall in the bag he left at reception and upon seeing it Ms McCall was visibly unsettled; it was a print of her favourite painting by her favourite artist, an obviously emotionally significant item.
The report noted the easy and close relationship between the mother and the children. Under the heading Evaluation, the reports noted at paragraph 52 and following:
There have been significant changes in the boys’ lives over the last 6 months and they have experienced considerable instability, particularly in relation to the time spent and their relationship with their father. Each child has reacted differently to these changes and since the 11F assessment in July 2016 their presentations have noticeably altered, with X now displaying less confidence and a greater degree of anxiety, while Y appears to have developed greater capacity to express himself and become less reliant on his brother. It is relevant that Y has a diagnosis of autism and this has a degree of influence on his comprehension of events and his interactions with others, which have been described as “unguarded”. It is helpful that the children have recently begun counselling to assist them in processing their experiences both prior to and following their parents’ separation, and it will be important, particularly for X, that this support is ongoing.
One of the primary factors present for X and Y is their lived experience of both of their parents’ anxieties, and if Mr McCall’s information is accurate, their father’s paranoid behaviours also. It seems that Ms McCall does her best to shield her children from her rather evident feelings of anxiety, nevertheless it is inevitable that X and Y will have picked up on these emotions and absorbed some of the tensions their mother feels. Ms McCall is conscious of this and can articulate that the children are age-inappropriately protective of her as a result. It would seem Mr McCall places less interest in and has less capacity to shield the children from his negative thoughts and feelings and this is borne out in some of his behaviours noted during observations and in the supervised contact reports, in particular the final occasion during which Mr McCall was aggressive, intimidating and crying in front of the children, causing the boys to become very upset also.
Both parents have included the children in conversation or provided information that is age inappropriate, with a particular focus being on what the children can or cannot discuss with the other parent and also, with respect to Mr McCall, X and Y repeatedly being asked very pointed questions in what appears to be an attempt to extract information from them.
At paragraphs 55 - 57, the report continued:
Mr McCall’s inability to contain himself, even with direct advice from professionals, is a significant concern and has been an ongoing theme throughout the proceedings. Mr McCall’s comment and query to the boys during observation that he was going to speak to the report writer about spending more time with him is a prime example of this. Mr McCall’s persistence in making these sort of comments and his lack of insight into how inappropriate they are indicate this behaviour is unlikely to alter and it is probable that X and Y will continue to face inappropriate lines of questioning during any time spent with their father. Whilst Y’s autism is not severe and he is able to communicate and engage with others relatively well at this stage of his development it is nevertheless of relevance that his capacity to do so, and on a consistent basis, is limited. Mr McCall’s observed insistence on the children answering his questions and providing him with detailed responses may indicate a lack of sensitivity to Y’s needs.
The implications of Mr McCall’s actions in relation to giving the children presents on the day of interview are significant and provide a further indication of his inability to comply with professional instruction or to consider the best interests of the children ahead of having his own needs met. That he told Y he would be given presents when he had been informed by the report writer he could not is troubling as this created a potentially upsetting situation for the children had the report writer later refused to carry out this request. The emotional manipulation of the mother by Mr McCall as a result of passing on a very personal gift against the express instruction of the report writer is also very concerning, particularly as he had been advised that to do so could be considered a breach of the Intervention Order.
Mr McCall’s denial of the majority of what is raised with him is concerning; he utterly refuted the information contained within the supervised time reports and sought to provide alternative versions of events that painted him in a completely reasonable light and the supervisors as having been problematic and dishonest. So too his denial of almost all of the information/allegations provided by the mother, where he instead sought to portray her as a violent and emotionally unhinged woman whom he could no longer bear to live with. This almost complete lack of insight and refusal to accept he has ever been at fault is highly problematic. This indicates a lack of willingness by Mr McCall and/or potentially an inability to achieve positive change in the problematic aspects of his behaviours and this is most troubling. A prime example of this is Mr McCall’s intention to attend a Men’s Behavioural Change Program in compliance with Court directions but with a firmly held belief it is of no relevance to him. Even should he attend, this attitude strongly suggests he is likely to experience minimal if any benefit from such.
The report went on to note the problematic question of the father’s drug use and the inconclusive results of drug testing. Having noted the fact that the boys did not miss their father to the extent that the father thought they did, the report continued at paragraph 60:
X and Y clearly have affection for their father and are able to enjoy spent time with him on the occasions when Mr McCall is able to contain his troubled emotions and manage himself appropriately in their presence. However, it is evident Mr McCall possesses a markedly limited ability to do so, thereby limiting the ability of the boys to reliably enjoy the time they spend with him. That Mr McCall could not manage himself during supervised time without resorting to petulant and intimidating and aggressive behaviour towards supervisors in front of the children gives a clear indication that he is highly unlikely to be able to manage himself appropriately outside of a professional setting. Mr McCall’s poor behaviour occurred even though he was aware sessions were reportable to the Court and would likely have a bearing on his future time with X and Y.
Given the myriad of risk factors present and in the absence of significant, identifiable change, it is not possible to see how anything other than supervised time could possibly be recommended for X and Y with their father. However, the reality of such an arrangement being sustainable or beneficial for X and Y given their ages, their limited enthusiasm for spend time arrangements and the risks that would remain for them even in a supervised setting strongly suggest that this is not a viable option. Furthermore, this is not a service that is available to families in the very long term. It is therefore recommended that all time with Mr McCall be reserved.
The report went on to recommend sole parental responsibility for the mother, with the children to remain living with her, and that the father’s time be reserved.
The affidavit of Ms L
It is a record of the time spent supervised by the Family Contact Service. It is not necessary to traverse the 40 pages of the report in great detail. It is sufficient for these purposes to note the record of the last period of time spent on 27 November 2016, which is described at pages 37 - 40 of the report. The report records unsettled and unsettling behaviour on the father’s part, including aggressive rudeness to the supervisor. It is not necessary to say more than that. The service ceased the father’s time thereafter.
It should also be noted that while the report notes a number of satisfactory and attractive interactions from time to time between the father and the children, the father was late on a number of occasions and his behaviour was by no means exemplary throughout. I also note the letter sent to the father by Ms L dated 14 September 2016 (exhibit ICL5) in which it was necessary for Ms L to remind the father of appropriate conduct following a number of breaches by him of the conduct that was expected. The tenor of his communications with the service in various texts (exhibit ICL3) is also at times unattractive, being overly assertive and arguably bullying in its tone.
The reports of Dr S
Dr S filed two affidavits pending his reports into the parties. While I have regard to the report on the mother in full, the relevant passages are at paragraphs 44 - 45 as follows:
Her personality appears to be one of dependency, making her vulnerable to being manipulated and domineered by the boys’ father. In the process, she became very demoralised and lost perspective, tried to appease and please the boys’ father, which was counterproductive.
Since managing to leave the relationship, she has developed a new perspective of her former relationship, and is getting help through various support agencies and has no current partner. There is no impairment of parental capacity by virtue of psychiatric illness.
The report on the father can likewise be traversed in relatively short order. Relevantly, he denied any physical assaults on the mother, although he alleged she had assaulted him. He emphatically denied ever harming the boys, particularly ever lifting X up by his shirt and making threats of any sort (page 8 of 9).
At the last paragraph on page 8, the report records:
He acknowledges regular use of intravenous amphetamines and regular use of smoked cannabis and binge drinking on weekends. However, he said this had never affected him so that he was irresponsible, in particular, never becoming violent. He said that he was provoked by the mother in her episodes of rage, where she would attack him physically.
Since the separation, he has felt broken hearted by the separation from his boys and feels a great loss of a role of conscientious father, being a constant day to day presence in their lives, which he had always wanted.
He presented as quite sad, a demoralised and, in the end, quite despairing. He states that he has not taken amphetamines for 2 years and that he drinks sparingly now. It appears that he has reluctantly started a new relationship, but still feels a connection to the boy’s mother and would far prefer for their relationship to continue.
The report continued on page 9:
Mr McCall is receiving psychological counselling on a regular basis, which he finds helpful. He did take Valium to help him sleep for about a month after the initial separation, but is not taking any other medications. He has not been admitted to hospital. He has never contemplated suicide or homicide. He has no significant forensic history. He displayed a conscientious interest in his boys, and obviously wanted the best for them in their lives that he could consistently provide, particularly considering his own upbringing. It is my opinion that there is no requirement for supervised access and there should be no time allocation with the boys, as he displays no impairment of parental capacity. The court may feel reassured about his abstinence of illicit substances by supervised random drug tests for a 3-month period. Assessment by a family consultant may also assist the court in their determinations.
It should be noted that Dr S had not read Ms B’s report at the time of the preparation of these reports.
The evidence given at court
It should be noted that the father had been self-represented until relatively shortly before the final hearing. He had sought on a number of occasions that it be adjourned. In the end, and noting that providentially the legal representation had occurred, the court pressed the matter to proceed. In the ultimate, no application was made at the commencement of the trial that the matter not proceed. It should be noted in passing that the court is very grateful to the father’s legal advisers for the thorough and comprehensive preparation of his case in what were doubtless challenging circumstances.
The evidence of the father
The father, in evidence-in-chief, adopted his affidavits and Financial Statement as true and correct. He is presently unemployed and in receipt of Newstart Allowance.
The father under cross-examination by counsel for the mother
It should be noted that what follows is taken from my notes. It is obviously not a transcript but it does the best I can to record the aspects of the evidence that seemed significant.
The father has a medical exemption from seeking work. He is not fit for work at the moment. He had not brought his certificates to court but undertook to do so the following day. He said he had looked for work despite not being obliged to. He had looked on online searches but had not actually responded to job advertisements. He was on a mental health plan which involved a psychiatrist. He had been treated for depression by Mr M. He has been seeing Mr M since the beginning of the month and started just before July 2016. He sees Mr M every month or two. He undertook to bring an earlier prepared report by Mr M to court. His GP had prescribed him Valium to help him sleep.
In 2015, he was employed as a (occupation omitted) but left the employment in 2015. He has not had paid employment since. When asked if he had made any job applications between August 2015 and July 2016, he was unable to think of any. He denied spending a lot of time in the garage in August 2015. He said it was a gradual move to the garage.
When it was put to him that following refinancing in October 2015 he had moved to the garage, he denied this. He said there was a refinance. When it was put to him that refinancing was necessary because of his debts, he said he had a Skype record and had 700 pages in his possession. These were not attached to any affidavit. He confirmed that he had sent an email to the wife’s lawyers on 3 March 2017 referring to 700 pages of Skype communication which he would be able to provide to the court.
He denied having drug debts in 2015 but did not dispute using speed in 2015. He had told Ms B that he had used. He used once or twice per month. He smokes marijuana a couple of times a week. He took his drugs away from the presence of the children, usually in the garage. Speed was injected in his arm. He smoked marijuana through a bong in the garage. He conceded possible occasional use in 2013, but he said he stopped drinking in 2014.
After that, he has just had a couple of beers. He had some beers at work. With a previous employer, he would drink at work three to four days a week but he was not sure when he had left. He had worked there for 17 years. He had his driving licence at the moment but had two speeding tickets. He is going to court in December but a charge of driving an unregistered vehicle is likely to be dropped. He is also due at the Ringwood court in February 2018. There is one count of speeding in a 40 zone. Another charge relates to his back tyres being unroadworthy.
When it was put to him that drugs were costly, he agreed that ice was. He said he could not do ice regularly because it was costly. Marijuana does not cost as much. He is not addicted.
When it was put to him that he had discussed with the wife the idea of refinancing in August or September of 2015, he agreed. He did not agree it was to pay out his debts. He intended to buy an investment property. He agreed that the refinancing was about $350,000. The existing loan was about $115,000 and when it was put to him that the balance ultimately available was about $214,000 he said it was just under.
His intention was to move homes and get somewhere bigger. Moneys were always paid to his (omitted) Bank account to which the mother had access. He conceded that this fact was not in his affidavit. He was definite there was a fight before he moved out. When it was put to him that he had moved out in October 2015, he denied this. He moved out at the mother’s request. She did not want him around. He bought a couch for the garage and bought a second-hand TV and a freezer. He had his laptop and used it. He did not use the money in his account for drugs.
He conceded the withdrawals referred to in paragraph 17 of the wife’s most recent affidavit. Some went on binary options tradings which had not worked out. He recalled the letter from the mother’s solicitors in March 2017 requesting information about the binary trading. His answers on these matters were in my view, I should interpolate and say, utterly unimpressive.
He said that two payments of $25,000 were in the mother’s parents’ safe. Some of it was returned as cash and put into his (omitted) Bank accounts as cash deposit. He said he did give her $50,000. He used $10,000 to buy a truck for $6500 which he still owns. It is currently registered to the ownership of Mr D. He has spent $10,000 on the vehicle thus far. He said that the truck was registered in his name in his first affidavit. He had realised the day before that there were some (omitted) Bank documents that the mother’s solicitors did not have and had been provided on the day.
When it was put to him that there was no real discussion about binary options trading and that he had only told the mother that he was thinking of it, the father denied this. He said she had listened to a conference call with the broker, Ms T. He agreed there was a small amount for 30 days. The mother was supportive and well-informed of all of this trading. He spent about $70,000 on this. Not all the trading was late at night, although the majority was because it was based upon the New York Exchange.
In hindsight, the father said that it was a risky form of trade and the mother was only with him occasionally during trading. When it was put that he had asked the mother to help in early 2016, he said this was contrary to his records and not true. He said a minimum amount of money had been used for drugs, $5000 possibly as an overall amount. The father was insistent that he had only used a minimal amount for drugs. He paid the mortgage from his (omitted) Bank account, and the wife paid groceries, for which she had her own account.
The husband, on the following morning, as cross‑examination continued, asserted that he had a medical certificate relating to Centrelink dated 9 October 2017. The previous ones were all the same. It was tendered as exhibit R2. The document attests that the applicant (patient) would be unfit for work or study from 9 October 2017 until 9 November 2017. It noted that the father was receiving counselling for depression.
When pressed as to his prognosis for work, the father’s answers at times were almost incomprehensible. He said that it mostly related to the breakdown of his marriage and not seeing his children.
He had met the mother in 2006 and conceded that the value attributable to his then‑owned property of $300,000 was in the ballpark. He had had a mortgage with a previous partner in 1997. He said that the mortgage at the time of the commencement of the relationship was less than $80,000. He broke up with his former partner in about 2002 and refinanced to settle. He borrowed more than his existing mortgage. He conceded it might have been $80,000 but thought it was more like $40,000. He was cross‑examined about the value of his savings and value of cars at the commencement of the relationship in 2007. I do not propose to traverse these matters because, in my view, they have been well and truly overtaken by events. The parties had vehicles of limited value then and small savings only.
The father conceded that his income when the relationship started might have been as much as $55,000. His tax returns were tendered as exhibit R3. He accepted that the mother’s income as a (occupation omitted) would have been about $70,000 and, in the last three years, $90,000 - $100,000. Indeed, he thought it might have been as much as $110,000. He conceded that the mother had been employed full time. He said the care of the boys was always shared and it was not true that he did not work because he drank too much. He could not say that this never happened as he had a hangover or two.
When taxed with what he had said about consumption of alcohol to the section 11F counsellor, he disagreed. He said it was probably something he said. He does not take speed every three days and believes he has said every one to two days. It was his mistake rather than the counsellor’s. He was not caring for the children at the time. When it was put to him that he used cold and flu medication to get through the day, he agreed. This was the case since the mother left. He said that this was now very rare. He conceded that he had sent exhibit R5, a letter to the mother’s lawyers dated 24 February 2017. This confirmed a certain amount of drug use.
The father was cross‑examined about the purchase of arms and confirmed that he had bought two small knives. When questioned about cash held by the parties, he denied that cash had only been held in his bedside drawer. He said the mother had access to it because that was where they kept cash. This was before the $140,000 came out. He rejected that the mother only took out $25,000 in January 2017. He denied saying to her, “Where’s the fucking money?” She had not given the money back to him. He conceded that he had stayed in the matrimonial home after the mother had left on 3 July 2016 until it was sold. He had not made any mortgage repayments. He had two releases from his superannuation, one on the basis of financial hardship. He received $32,000 less 20 per cent tax. He had not used that money to pay the mortgage. It was gone.
When it was put to him that he had been violent towards the mother and that she had been excluded while he was living in the garage, he said that the mother was excluded and had to knock when she came into the garage. He had not said this to the children. He did not want the mother to come in. On previous occasions, she came in in a rage, and there was no lock on the door. The door makes a screeching sound. He put a button and bell on the door to avoid being startled.
He was cross‑examined about an incident on 28 February 2016. He said the mother came to the garage at 2 am, banging on the big door. She then ran around to the side door and was in a state. He was talking to someone but was not having phone sex. The mother was screaming. She could have been heard two blocks away. He was trying to calm her down. He said he was on the phone to a person he had met from a chat site. He had texted her, and then she rang. He did not want the mother in the garage in that state.
She was threatening suicide. He did not force her out of the garage. He went past her to the house. He did not push her onto the rubbish heap and did not push her through the house. He admitted that they had had yelling matches, but this was not often. He did not scratch the mother’s face or chest. He denied having grabbed X around the throat in June 2016. He agreed that he had sent an email, exhibit R6, to the mother. The attached letters addressed to the mother include a declaration of continuing love and the comment, “As a husband, I failed you.”
The husband denied he had any problems with drugs and denied he needed counselling.
The father under cross‑examination by counsel for the Independent Children’s Lawyer
Through the witness, counsel tendered exhibit ICL1, a report from Mr M. I note that the report recorded significant depression on the father’s part in 2016 and that “themes of missing his kids and of injustice predominated” in his early presentation.
The father said he had not been on medication on the previous day and had not taken any substances except cigarettes. He is not now taking medication and has sleepless nights. The report of Mr M was for a Magistrates Court proceeding several months after separation. He was at the Magistrates Court for a breach of the Intervention Order on 4 July 2016.
He said he sees Mr M when he needs to. Dr R has suggested antidepressants might help him, but he does not take them. He tried them many years ago, and they do not help. He said it is hard to get out of bed. When he was asked what steps he was taking to improve, he said he was hoping to see his children again. The children would benefit if he was emotionally well. He was coping but not to the stage where he would be able to work. He wanted to be at optimum functioning for his boys. He was seeing his psychologist, but he was missing his boys. He said he had improved. It is not easy. He did not admit he had a drug problem but admitted he had used recreational drugs. He said it did not matter that he had injected speed. It is still the same drug. He would rather not have antidepressants. What he needs is exercise and diet.
When it was put to him that he saw Ms B in July 2016 and confirmed that he had been prescribed Valium but only took antidepressants for a day, the father replied that he felt worse for that one day. He took half a tablet, and it was scary. He admitted saying to the mother, “You will need an army, bitch.” When it was put to him that he accused the mother of having the sole reason as wishing to hurt him in these proceedings, he replied that her heart was in the right place. He said she thinks she is protecting the children. He told Mr M that the mother had moved out with no notice, with no provocation or precipitating event. He said it is now less often that he is unable to get out of bed in the mornings.
When it was put to him that he had told Ms B that he had been injecting speed two to three days running, he said this did happen sometimes. It was pretty recent. Within a couple of months. He was using within a couple of months of separation. It was put to him that he was convicted of possessing amphetamines in September 2016, and he agreed that the LEAP records showed a conviction on 20 September 2016. He was called to go to the (omitted) police as a result of reports of a breach of an Intervention Order and then arrested at the station. There had been reports of firearms, which led to searches.
The police found amphetamines in four small bags, and marijuana. This was very soon after the mother left in July 2016. The drugs were in the kitchen, and he was the only person living in the house. He never had possessed a gun but did possess two small knives, which were destroyed. He received a 12‑month Community Corrections Order for this. He breached the order by contacting the mother. He believed he was entitled to. This came back to Court in May 2017, and he was fined $2000 and convicted. He has not paid, and the matter is due to be further heard in December.
He conceded that he had recently been charged with driving an unroadworthy car.
He conceded that he was taking ephedrine two to three times a week and found that they helped (see exhibit R5). He also agreed that his drug screen on 25 July 2016 showed benzodiazepine, which he said was Valium. He said that opiates revealed in a test dated 12 August 2016 were codeine for toothache. These were not prescribed drugs but were Panadeine Extra. It was put to him that on 21 September 2016, sympathetic amines were shown, and he said these were pick‑me‑ups.
When it was put to him that on 28 October 2016, there were sympathetic amines shown, he agreed and said this was pseudoephedrine. He said he had never been addicted to speed. He knew screens had to be undertaken within 24 hours and was late on one or two occasions. He thought it would take one week for speed to come out of his system.
It was put to him that his drug screen on 31 June 2017 showed cannabis, and he agreed that he had used this over the Christmas break because he was very depressed. The same was shown on the test dated 1 March 2017. A test on 2 June 2017 was clear, but a test on 15 August 2017 showed sympathetic amines. It was seven days late. He said he had flu at the time and received the letter of request late. He thought the letter of 18 August was just a request. He did not take matters into his own hands and denied missing a test requested on 25 August 2017. Two later drug tests were clear. Counsel tendered a document showing the results of the drug tests requested of the parties, which I caused to be marked as MFI1.
The father denied taking Valium now at all and also said he was not taking pseudoephedrines. He takes them very rarely now in comparison to earlier. They are just a mild stimulant.
He agreed that supervised time started on 20 August 2016 but said he was very stressed by the delay. He denied yelling at the contact worker on the last visit. He disagreed with the whole version of events. He ended the visit. He was going to (omitted). The supervisor was called Mr T. The boys were on swings and then came over. They were walking to the beach and collecting shells together with the worker. He was sitting on the grass, and the worker came back.
He told the worker to take a step back, and she said, “Why don’t you get off your arse and play with them?” It was put to him that he was frustrated and angry in his communications with Ms J, with temper flares, and he denied this. He said he was not angry but frustrated. He did not remember being told to grow up. He denied swearing, and it was not his default position that the mother was to blame. Exhibits ICL3 and 4 were tendered, being text messages sent to the centre, on which I have already commented.
The father said he had read the family report but did not agree with it. When it was put to him that he had grabbed X by the throat, he said this had never happened. The Intervention Order allegation was that he had grabbed the child by his shirt collar. When it was put to him that X had told Ms B that he had tried to choke him, the father said that X got this from somewhere. He had been coached by the mother. He went on to say that he had done some things that had shot himself in the foot. He said he could listen more to instructions. He would take antidepressants as a last resort. It does not treat the source of the problem, which is him.
Ms B has relied upon Mr T’s account (the final supervisor), which he rejected. He was trying to defuse the situation, and she was trying to keep her job. He said that this was the thing that gets him the most. He did not want to leave. The children were sticking up for him, and all this was twisted in the Family Services report on him. He admitted he had sent Ms J a message, “What a wonderful word.” He denied that he was using drugs at the time. He admitted receiving the warning letter from the service dated 20 September 2016. He said this was based on a conversation with the mother following a Father’s Day visit. When it was put to him that he had not wanted to talk with the children within the hearing of the worker, he gave really no answer at all.
He went on to say that he did not seek that the children live with him. He sought supervision purely to satisfy the other parties. He did not believe supervision was in the best interests of the children. It undermines the male role model of their father. He did not believe he had been manipulative. The family report was damning but was not warranted. He did not disagree all points. He had some insight into his behaviour. He said he had been misunderstood. It puzzled him, how people can doubt his motivation.
He had attended the (omitted) drug and alcohol recovery support program. He denied having slurred speech on the previous day of hearing. He tendered a certificate from (omitted). I note that the report (exhibit ICL6) asserts that the father attended for assessment and treatment in August 2016. The report opined that “Mr McCall does not require AOD counselling at present as he is not abusing alcohol and other drugs.” Recommendations were for Mr McCall to attend a men’s behaviour change group, couples counselling with Relationships Australia and to see a psychologist for past and current issues.
The father in re‑examination
The father was cross‑examined about the last visit with Ms J supervised by Mr T. He had told her to take her a step back and do her job. She took offence. She said, “I’ll terminate the visit if you behave like that,” and he had said “Okay.” She was playing with the children and was being intrusive in his time. It was the attitude she was taking. He had only seen the children with a counsellor once. He had never been physically violent to the mother. Separation took place on 30 June 2016, but they had been sleeping together at times beforehand. He lost about $70,000 in binary transactions. He said $87,000 had been expended and $20,000 or less came back. He said the wife took drugs too. Not just him. He said she took speed. He said she took more marijuana than him. It helped with her multiple sclerosis.
When asked what the way forward with the children should be, he said he would like to sit down and talk with the mother with no mediation. She could supervise time. If it was fortnightly time, four visits with supervision would be enough. He would be willing to undertake drug tests each week (although I should note that his demeanour did not suggest that he would be).
The father conceded he had breached the Intervention Order. The mother would not answer the phone. He sent her Skype and text messages, and sometimes she answered. The second breach related to an attempt to arrange time for the school holidays. There were never any threats or abuse. He was going to continue to see Mr M, which helped. He provided insight. The mother knew about binary options, and he tendered exhibit A3 to this effect.
I should interpolate that much of the father’s answers, and particularly in this latter phase of his evidence, were rambling, non‑responsive and at times almost unintelligible.
The evidence of the mother
The mother adopted her affidavits as true and correct, and her financial statement. She has difficulty breathing due to her multiple sclerosis.
The mother under cross‑examination by counsel for the father
The mother admitted that she had never denied that $70,000 was lost on binary options. She knew what the father was doing but not its extent. She tried to help him get moneys back. She was not aware it was an international scam. She did not agree with the extensive exchange of Skype messages. She had to agree because she was living in an abusive, controlling environment. Exhibits A4 and A5 were tendered as examples of Skype messages between the parties.
The mother was diagnosed with multiple sclerosis on ANZAC Day 2016. Up till that time, she was struggling with her breath but she ended up in hospital on that day. She had soldiered on. Relationships with the father broke down in about 2015. Multiple sclerosis does not affect her capacity to cope. She has been (occupation omitted) for 17 years, the majority of which was in the (employment omitted). She plans to return to work next year and has recently been offered a role. She has maintained herself but it has not been easy.
She receives a carer's allowance for Y. She has received $20,000 as back pay from last year. She is paying $200 per fortnight to her lawyers and still owes them a lot of money. She did not tell Dr S that the husband had not been violent to her. She knows the father wants to see the children. The contraventions of the Intervention Orders did not involve any violence. She has not seen the father since the last Court hearing. They last spoke the previous Saturday on the telephone. The first phone call was placed to the maternal grandmother and the second call had a Chinese accent. The third call she had answered but could not get what it was. By the fifth call, it was apparent that it was the father telephoning, saying, "Beep, beep, beep". She had said to him, "Mr McCall, I know it is you. Stop calling or I will report this". She rang the police. When it was put to her that the father denied these calls, she stuck to her evidence.
She had heard the father say he was depressed and wants to see the children. He would undertake drug testing and had provided recent clear screens. She said time needs to be supervised at the beginning. This could be for four months. If all goes well and the children are happy and the father is clean, she would consider this. She hopes the children will have a good relationship with their father and benefit from that.
It was put to her that she had also dabbled in drugs. She said she had taken speed a couple of times but never injected. After her diagnosis of multiple sclerosis, she had had a few medicinal joints which the father made for her. They helped with the pain. The speed had been taken dissolved in water and she was not proud of this.
It was put to her that she had taken $50,000 in cash. She said she had not heard of the global crisis but the father was concerned about this. She did not have cash in a drawer. He stashed cash in his drawer. In 2016, the marriage was going down. The father was going out with other women. There were no discussions about jewellery in her parents' safe and no discussions about a safe. Her jewellery has gone missing. She has seen a photograph of his girlfriend wearing his necklace. She has seen screenshots of him discussing her in not nice circumstances.
There were messages about more drugs, which were on a computer in the house. The father's computer was open. She had not made this up and not made anything up. The mother was clearly angered by the question. She took nothing with her when she left and she lives with her parents. She has a niece and nephew studying in Australia from (country omitted) also living with them. She took about $25,000 out of the drawer and intended leaving and placed it in her drawer because of this. There was no money otherwise in her drawer. She never counted the money and it could have been more than $25,000.
The mother under cross-examination by counsel for the Independent Children’s Lawyer
The mother admitted that she had told Dr S that she loved the father in October 2016. She will always have love for the father. He is the father of her children. He does not want to reconcile and neither does she. The mother said that the father moved on a long time ago. She confirmed that her own father is in hospital but was not sure for how long, as he has lymphoma. She is hard-working. She received the news of her multiple sclerosis on ANZAC Day. There was animosity in the house in 2015. She had never doubted that the father wished to see the children.
She recognised the importance of a relationship with the father. She nonetheless said children need to be safe. She said, "Emotionally, the father needs help. He used drugs daily and is now worse. He is not healthy-looking. He looks sad and looks frail," and is not the strong person that she originally met. She is not willing to sit down and mediate. They mediated last year but she does not wish to do so now. The mother accepted that she had involved the children in discussions about the father. She has taken Ms B's report on board.
The mother gave money to the children for Father's Day stall at school. The children refused the money but took money from the grandfather. This is quite sad. She tells the children that the father is not well right now but he is going to get well. "They need to know a little bit". She told them this in early October.
In re-examination, the mother said she knew the father used drugs daily. He had quit his job in (omitted) 2015 and drug use became more frequent. He moved to the garage. Drug use continued until she left in July 2016. Her sons and herself were walking on egg shells and it all depended on the father's mood. She confirmed she dabbled in speed a couple of times per year in 2015 and 2016. She had not used marijuana since university.
The evidence of Ms D
Ms D is a cousin of the father and a good friend of the mother. She adopted her affidavit as true and correct.
Under cross-examination by counsel for the father, Ms D confirmed that she is a cousin of the father's and has known him for many years. They were not brought up together. She was formerly friendly with the father. This had ceased because of stuff she had been told by the mother and stuff she had seen herself. She did not agree with his behaviour and had not spoken to him for some time.
Ms B
Ms B adopted her family report which is tendered as exhibit M1.
Ms B under cross-examination by counsel for the Independent Children’s Lawyer
Ms B confirmed that she met the parents in July 2016 for the preparation of an 11F report. She tendered as exhibit M2 her letter of 9 March 2017, in which she confirmed that having considered Dr S's report she did not change the recommendations in the family report.
When questioned about the 11F interviews, (the report being exhibited as exhibit M3) she confirmed that the father indicated to her that he would sometimes use speed for two to three days running. She had contemporaneous notes to this effect. Contemporaneous notes showed cannabis, LSD, speed, mushrooms, speed one month ago and two to three days at a time. The incident with X referred to in the 11F report where the father grabbed him was a direct quote. The 11F report was written contemporaneously with the interviews. She had not doubted X’s telling her of the incident. It was not her impression that he was coached. The father's tone in talking to children was like talking to a much younger child.
She saw the parties again on 17 January 2017. The mother's reports of the father's behaviour were very concerning, as was his behaviour at the 11F report interviews. Ms B had not read the subpoenaed documents but had read the report from Ms L. She understood that time at the contact centre was finished. She had spoken to Ms L to understand why the service was terminated. It is unusual to terminate such a time.
Ms B opined that it seemed that the father's communications with the service were excessive and unnecessarily frequent. The father struggled to understand the service's remit and the nature of his contact with the children. She did not get the sense that the father's texts were aggressive but rather were more frustrated. She said the father's time should be reserved. This was because of the risks identified in her assessment. The father was inconsistent in attendances and stopped time on three weeks. The reasons for this were unclear. He showed a lack of insight into the children's needs, including emotional needs. There were questions about family violence and drugs. There were questions about the father's capacity to control himself in front of the children, and Ms B was concerned that he had been convicted for possession of amphetamine in September 2016.
Ms B had no strong views about the use of ephedrine. She had understood the father to be employed when she saw him in January 2017. He had been a (occupation omitted) working for (employer omitted) in (omitted) from Mondays to Fridays from 6.30 am to 3 pm. The father had admitted occasional threats to the mother. If the Court was sure the father was not using drugs and if the father was honest in reporting and more insight into his children's needs and was able to contain himself, time with the children might be appropriate. It was impossible to say how long this might take.
Ms B under cross-examination by counsel for the mother
Ms B said that a further psychiatric assessment might not assist the Court. Attendance with Mr M was likely to benefit the father. If there was to be time for the father, then he should undertake a parenting course to understand the children's needs and developmental stages. The father was very resistant to taking advice and this was a problem. He was unlikely to benefit from a men's behavioural change course as he thought this unnecessary. If time was supervised he could undertake courses simultaneously.
Ms B under cross-examination by counsel for the father
The father did not get off on the wrong foot with Ms B. The father was highly emotive but did not get off on the wrong foot. He was very frustrated at times.
It was put to Ms B that she had had the mother and various relatives with her for three hours before she saw the father. Ms B confirmed that she only interviewed the mother and father and they each had equal time with her. The mother did not have three hours. It is usually 90 minutes for each parent.
The children have enjoyed time with the father and are not fearful of him but sometimes uncomfortable. She had only understood on the day of the hearing that the father had not seen the children for a long time. She saw the children with the father for 15 to 20 minutes. He is still seeing Mr M. The mother had told her about her drug use. She said she was not using drugs at the time of the 11F report but had tried speed in the past and had used medicinal marijuana. There was no drug use at the time of the family report.
The evidence of Dr S
Under cross-examination by counsel for the Independent Children’s Lawyer, Dr S confirmed that he had seen Ms B's report. In the light of this, he had changed his opinion. The father sounds quite unstable and unpredictable and supervised access would be in order. He did not consider the father depressed when he saw him a year ago. The father needs a behavioural change program. The father seemed very demoralised and beaten when he law saw Dr S, but from the family report he seemed to have problems taking responsibility for his actions. Dr S did not think antidepressants would help.
Under cross-examination by counsel for the mother, little of moment emerged. There may have been some errors in the father's account of facts to Dr S. The mother had told Dr S that the father was watching porn sites. She had also been on three dates herself to get his attention.
Cross-examination by counsel for the father likewise did not take the matter much further, although Dr S did confirm that any time should be supervised for some time.
The submissions for the parties
I propose to paraphrase the submissions, able as they were, in short form. The Independent Children’s Lawyer's counsel noted that Dr S had resiled from his former position. The Independent Children’s Lawyer was very mindful of the position of Ms B both in the section 11F and family reports and in her subsequent written advice, exhibit M2. It was submitted that the children need to be protected and that time should resume with the father when it was certain that his capacity to care for them was established.
The father loves his children but sees them as his therapy. The children could not be assured there would be a proper relationship with the father until he addresses his issues, including substances of whatever sort. Exhibit ICL6 from (omitted) does nothing to suggest the father was addressing his drug issues. He is continuing to prop up his health by the use of ephedrine, and although his last two screens were clear, the results before that were not and there was not proper compliance.
The other real issue was submitted to be the father's lack of insight into his actions when with the children. Counsel referred to his manipulative behaviour when with Ms B in giving the mother a Christmas gift even though told not to. This was a failure to listen. He will not accept directions from professionals. Until the father understands this, it was submitted that the father would not change. It was hoped that the father would review his substance abuse through (omitted) and it was noted that the mother continues to hope that the father could spend time with the children. There is no desire on her part to cut the father out. She gave the children $10 for Father's Day for the father which they rejected.
The risk factors referred to by Ms B at paragraph 61 of her family report are still there, and until the father proves to the Court that he has changed, no time is appropriate. The opportunity should be available to him to bring his application in a case without facing a Rice & Asplund point, and there should be a notation to this effect.
The submissions of counsel for the mother essentially adopted those of the Independent Children’s Lawyer. It was submitted that the mother should have an order for sole parental responsibility in light of the difficulties of communication between the parents.
In relation to property, the mother's counsel relied upon the written submissions filed. The only expense the father paid was the mortgage. The mother paid all the rest. The mother's evidence as to this was unchallenged. Binary trading was also wasted. The husband had the house at the start of the relationship but the wife earned more throughout. It was submitted this made this equal. She earned approximately $95,000 in average over the last three years whereas the husband was making only $45,000 at the start.
Both parents had health issues. The mother has multiple sclerosis but will have 0.8 employment next year. She is 38. It was submitted there was no medical evidence the father cannot work. It was submitted that each party should retain their superannuation. The father had failed in his obligations as to disclosure and this made the proportional split the mother was seeking appropriate.
Counsel for the father emphasised that the father wants to see the children and the mother is hopeful this would occur. He pointed to Dr S's report suggesting that the father's focus was on the welfare of the children. He submitted he should see his children unsupervised, and counsel pointed to paragraph 43 of Ms B's report, showing that the children were happy to see him. Dr S had opined there was no psychiatric condition to preclude time. The father was prepared to do whatever the Court might order to see his children. He would like to start time immediately, supervised by ATSIA and then bring the matter back to Court. His recent drug screens were clear.
In relation to property, counsel pointed to the fact that the husband had property at the start. It was only a $40,000 mortgage and the property was worth $300,000. The husband worked until he ceased work and had done his best. He had done a lot with the children. All that is left is the $200,010 in trust. So far as binary trading, it was conceded a loss of $70,000 took place but that the father was trying to benefit the family. The father maintained that the wife had taken $50,000.
The father had drawn down $33,000 of his superannuation and spent some of the $213,000 to which reference has been made on day-to-day expenses. It was submitted he clearly cannot work. The wife fortunately has a good job and obtains substantial benefits. It was submitted that the property pool should be divided equally and it was submitted there was no failure to disclose.
The credit of the witnesses
I saw both the primary witnesses in the witness box over an extended period of time. I am not a doctor and would not purport for a moment to exercise medical judgment, but it was impossible not to note the dull effect and despondent demeanour of the father. His answers appeared at times, as did his associated demeanour, to suggest that he was scarcely engaged with the proceeding at all. To coin a colloquial phrase, he seemed to me at times to be "totally out of it". A number of his answers were almost unintelligible. I have already commented on some utterly unimpressive answers given when he was being cross-examined about his withdrawals of cash.
Whether because of his long-term drug use and/or because of his historical depression, he was, in my view, a poor historian and a witness whose evidence must be approached with caution. His lack of insight was particularly well-instanced by his assertion that X had only told Ms B that the father tried to choke him because he had been coached by the mother. I should interpolate and say that Ms B's evidence in this regard, as indeed generally, was entirely believable. The father does not understand in truth that he has any difficulties at all, and this is reflected in the form of orders he seeks, including an immediate commencement of time.
The mother was a better witness. She made candid concessions as to her own past drug use, the limits of which I accept. She did not, for example, seek to cloud the evidence about her knowledge of the binary trading such as it was. Her angry assertion that she had not made anything up is one that I accept. She was, putting the matter shortly, clearly an honest witness. Her evidence that she and her sons were walking on egg shells while the husband was still in a relationship was given under visible distress and was clearly true.
It is not necessary to comment in any detail on the credibility of the other witnesses, all of whom, in my opinion, were truthful evidences, and in the case of Ms B and Dr S, within their professional area of competence.
Findings as to the facts
Parenting
The parties met in 2006 and commenced cohabitation shortly thereafter. As earlier indicated, they were married from (omitted) 2009 until separation on 3 July 2016.
Things clearly went wrong in the relationship in a major way in about 2015. The wife was clearly aware of the father's infidelities, and the father, whose drug use had already been heavy, moved into the garage on a progressive basis. He bought furniture, a TV and the like, to enable him to live what was pretty close to an independent life. Nonetheless, he was not totally disengaged from the rest of the household who walked in fear of his temper and volatile outbursts.
It is clear that the mother from time to time sought to reconcile, even though she may have been out with other men to try and attract the father's interest, but there is no question that the mother formed the definitive view following the major overnight squabble in February 2017 that matters were coming to an end. The final separation was precipitated by the assault on X which I fully accept happened in the terms X described to Ms B.
Thereafter, the father remained in the former matrimonial home until it was sold. The supervised time arranged through the contact centre was marked by aggressive and intimidating communications from the father, who simply did not understand what the role of the centre was. It culminated in an outburst by him against the supervisor, who ultimately terminated the time. I note that that supervisor has not been called.
Nonetheless, not only the contemporaneous records of the service itself are consistent with what was said to Ms B, but having seen and heard the father give his evidence, I have no doubt that the supervisor's version is the preferable one. The father's complete self-exculpation is almost as much a difficulty as the conduct itself. He has no insight whatsoever into his actions, his drug use and his behaviour towards the mother, and indeed the children, during the relationship.
This brings us to the statutory pathway. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental responsibility
In this case, it is clear that there has been family violence within the extended meaning of section 4AB of the Family Law Act, and this would displace the presumption in any event. Furthermore, in circumstances where the father is simply not presently in sufficient health or awareness to be able to constructively address any issues whatsoever with the mother, the notion that shared parental responsibility would be workable and therefore in the children's best interests is obviously wrong. The Independent Children’s Lawyer and the mother seek an order for sole parental responsibility, and indeed there should be.
Should the father spend time with the children, and if so, in what fashion and to what degree
It is important to note the stark differences of opinions between the parties. The Independent Children’s Lawyer strongly submits that the father's time should be reserved until he sorts himself out, and this is supported by the mother. The father's contrary position is that time should start immediately, although he is prepared to undertake whatever courses the Court orders him to undertake. Given that I accept the evidence of Ms B that the father is entirely resistant to any sort of externally imposed regimen, this latter preparedness must be taken with a massive degree of salt.
The primary considerations
Everyone agrees that it would in principle be in the children's best interests to have a meaningful relationship with their father. I accept the mother's evidence that she would still hope that this could occur, but she seeks that the children be safe.
The need to protect the children from the risk of emotional and physical abuse referred to in section 60CC(2)(a) is one to which I must give greater weight by virtue of section 60CC(2A). In the circumstances where the father simply does not understand the nature of the limitations and difficulties with his own behaviour and the observed difficulties that it has given rise to with the children, it is clear that this primary criterion should be given weight.
The additional considerations –
Section 60CC(3)(a)
The children have, as Ms B reported (paragraph 60) a clear affection for their father and are able to enjoy time spent with him when he is able to contain his own emotions and behave appropriately. The difficulty is that the father is not able to do this, and such is made clear by the report of the contact service. The children are not opposed to spending time with their father but neither is there a strongly felt desire (paragraph 59 of the report). X would require a supervisor present and Y's views are unknown. It has not been stated in terms but it is clear that the children have a desire to live with their mother.
Subsection 60CC(3)(b)
In a sense, this has already been traversed. The children love their father when he is able to behave properly but are, naturally enough, troubled when he is not. They have an excellent relationship with their mother, and although little evidence of any sort has been given about their relationship with the maternal grandparents, it would seem likely they have a good relationship with them since they have been living with them for some time.
Section 60CC(3)(c)
The mother's conduct under this criterion has been completely unexceptionable. She has been the children's primary carer all their lives. The father's behaviour is unsatisfactory. His endeavours to spend time with the children through the contact centre have been, as I would see it, completely disastrous. The assault on X when the father was still living with them speaks for itself. His withdrawal largely into the garage for the last period of the relationship also shows a self-obsession rather than a concern for the children's interests.
Section 60CC(3)(ca)
The father following separation lived in the family home and failed to pay anything on the mortgage. He does not appear to pay anything in child support. He has not, in my view, properly fulfilled his obligations as a parent in any event, whereas the mother has.
Section 60CC(3)(d)
The father seeks that time commence immediately. He seeks that it be unsupervised. It is quite clear that the children are not presently ready to sustain this. The effect upon the mother would also be extremely deleterious, since her natural and, as I would find, justified concerns as to the likely behaviour of the father would no doubt impact upon her own sense of security and wellbeing.
Section 60CC(3)(e)
There are potential practical difficulties of any spend-time regime that is supervised because the father has limited income. There would be no such objection to unsupervised time, but the practical difficulty with it is that at this stage the children are not ready for it, and indeed, it is contraindicated by all the other factors to which I am making reference.
Section 60CC(3)(f)
There is no question that the mother has a fully developed capacity to provide for the needs of the children. Unfortunately, the various shortfalls in the father's personality and health mean that he is ill-equipped to do so. I note and accept the submission by counsel for the Independent Children’s Lawyer that the father sees the children as his own therapy.
Section 60CC(3)(g)
The mother, despite some earlier limited and occasional drug use, has a stable lifestyle. She is about to obtain new accommodation on her own. She will also start new employment in the new year. Although she has multiple sclerosis, it has not yet impacted in any way upon her capacity to care for the children. The father is unfortunately not in a good space. He has continuing possible difficulties with drug use. I remain as doubtful and unconvinced as the Independent Children’s Lawyer that the father has truly mended his ways, especially given his gross under-representation as to what his past usage really was. While it is clear that his absence from his children has been desperately upsetting to him, and in all probability has contributed significantly to the current state of his health, the fact is that he is just not at present sufficiently robust to be able to properly discharge his functions as a parent.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
It is worth repeating under this heading the very proprietary attitude that the father has to his children. It is also worth repeating the fact that he sees them as the solution, so to speak, to his problems, or as counsel for the Independent Children’s Lawyer put it, he sees them as his therapy. The mother's attitude to the children is simply that of a devoted mother.
Section 60CC(3)(j)
I have already dealt with this, although it bears remembering not only that the family were always on egg shells when the father was around but that he assaulted X in particular shortly before final separation. This is important, even though X was prepared, albeit reluctantly, to see the father at the 11F and family report interviews.
Section 60CC(3)(k)
There does not appear to be an extant family violence order, and certainly this has not been a matter stressed by any party in the proceeding.
Section 60CC(3)(l)
It is clearly preferable to make final orders.
Section 60CC(3)(m)
The only matter to which I would refer under this heading is the father's complete rejection of professional supervision or advice. Until he learns that he does indeed need to change and address his difficulties, he will simply not be able to progress.
Conclusion on parenting issues
Orders will be made as sought by the Independent Children’s Lawyer and supported by the mother. The father's time will be reserved, but in such a fashion that should be ultimately be able to take on board the findings of this Court, then his way forward is clear before him, without any obstruction from a Rice & Asplund point.
Property issues - Stanford & Stanford
In this case, the Court is required to ascertain the parties' legal and equitable interests and decide if a property division is appropriate. As was pointed out, however, in Stanford, this is one of the many cases in which the parties now conduct their financial arrangements in a way totally different to that during the relationship and both of them desire a property settlement. It is clearly just and equitable that there be one.
The pool
The pool available for division is as follows:
a)Proceeds of sale of former matrimonial home, $211,000.
b)Partial property distribution, wife, $30,000.
c)Partial property distribution, husband, $30,000.
d)Wife's Toyota (omitted), $12,000.
e)Husband's (omitted) Commodore, $2000.
f)Husband's Ford (omitted) truck, $6500.
It should be noted that the $12,000 figure is taken as a concession against interest from the husband's outline of case document.
I do not propose to give any weight to the parties' bank account savings or credit card debts. Nothing of any moment has been said, (certainly nothing was said in submissions), as to what I should make of these figures. I accept that the wife's outline of case document shows an estimate of (omitted) Bank savings account of the wife in the sum of $6888, and (omitted) Bank account, $30,910, but I am no wise informed, as far as I am aware, to what extent this may represent a double counting of the $30,000 partial property distribution. Equally, there is no information to indicate to what extent these figures accrued during the relationship or otherwise. The same stands true for the parties' credit card debts.
I would interpolate at this stage and say that I accept the wife's evidence that her jewellery has gone missing and that I do not accept she abstracted $50,000 in cash. All the cash was kept in the husband's drawer at the side of the bed, and although the wife took out $25,000 or thereabouts on one occasion, she put it back following the husband's angry outburst about it.
Superannuation
The wife's superannuation is worth $130,810. The husband's superannuation is worth $32,000 (concession in his outline of case document).
The contributions of the parties
The husband owned the former matrimonial home at the commencement of the relationship. It was worth $300,000 with an equity of $40,000. Nonetheless, this figure, which might have suggested a rosy financial future, has simply not come to pass.
I accept that the wife worked and earned more than the husband from time to time. I also accept that the husband received in excess of some $200,000 when the mortgage was ultimately redrawn. There is simply no adequate information as to where this went. Accepting that a minimum of $70,000 was lost on binary trading, there is an awful lot of other money that has just been whittled away. Some of it must have been spent on drugs, and I suspect, although I can no wise quantify it, it would have been substantial.
Likewise, the substantial amounts of cash withdrawals taken out by the husband from time to time are simply not explained, although I suspect that there would be an element of double counting in the two figures. It does not in the ultimate matter. Counsel for the father, correctly, in my view, accepted that it is a matter now of dividing up the $210,000 that is left.
In circumstances where on any view of the matter, the husband's ownership of the home provided a significant contribution to the parties in terms of giving them somewhere to live, at what I suspect would have been a substantial discount from rental properties and where, although it is not possible to conduct even the most notional tracing exercise, it is nonetheless the case that the remaining final funds of some $270,000 must owe something to the husband's initial contribution.
However, by way of offset, the husband has undoubtedly wasted very large amounts of money. Whether he spent more on binary trading than he now recollects or not, there are very substantial sums not accounted for. In all the circumstances, bearing in mind that the relationship was one of some duration, it is appropriate to assess the parties' contributions as equal.
Future needs
Although the wife's multiple sclerosis does not yet significantly affect her and she will be able to return to something akin to full-time work at a good salary next year, her longer-term health prognosis must be debatable.
The submission made by counsel for the wife that there is no medical evidence to show that the father cannot work faces the difficulty that it is precisely the kind of mental difficulties that are going to prohibit his time that make work an impossibility, not only now but for at least the medium-term foreseeable future. It is to be hoped when this case is over the father will start to get better, but this can certainly not be said with certainty, notwithstanding Mr M's partial optimism. The father will certainly not be able to earn as much as the mother in the future.
Against this, the mother retains the care, and it will be full-time care, of the two children. This is a significant responsibility which will endure for at least another eight years, and possibly longer, given Y's autism. In all the circumstances, there should be an adjustment of 10 per cent giving the wife 60 per cent of the property pool excluding superannuation.
Superannuation
The wife has asserted (affidavit filed 17 November 2017) that both parties had about $150,000 in superannuation at the start of the relationship. This is hard to understand given what they now have.
Little has been said about the accrual of superannuation.
I do not accept that the husband has effected, as is put in the wife's outline of case, a chronic and deliberate non-disclosure. The father's mental health, if nothing else, would have made any proper compliance by him something of a difficulty. I am not satisfied that he has wilfully withheld pertinent information to his benefit.
In all of the circumstances, it seems to me just and equitable that the parties should retain their superannuation. This was a relationship which, while it was some duration, as I have said, all took place between 2006 and 2016. Superannuation contributions were well in place long before the relationship started. I also accept that for at least the last two years of the relationship the consortium of marriage had largely if not totally disappeared. It is not a case where, in my opinion, it can properly be said that either party really owes their superannuation to the relationship but rather to their own endeavours. Superannuation should stand as it is.
Chattels
Each party should retain their chattels. Their motor vehicles are of roughly equal value in any event and there is no meaningful evidence as to what any other chattels they possess are worth.
Conclusion
This has been a lengthy judgment to write because the case took a long time to hear. I have not dealt with each and every matter the parties have raised. By illustration, I would refer to the glancing reference to the father's supposed business contained in the wife's outline of case. Where a matter is not referred to, it is because I simply do not deem it to be of sufficient significance to direct further comment.
I certify that the preceding one hundred and seventy-seven (177) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 7 December 2017
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