McGregor & McGregor
[2010] FMCAfam 1029
•23 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| McGREGOR & McGREGOR | [2010] FMCAfam 1029 |
| FAMILY LAW – Parenting Orders – Residence – alienation of children by husband against wife – father unable to encourage or maintain the children’s relationship with their mother – change of residence in best interests of children – need for support for the wife, husband and children through counselling to facilitate change of residence – restraint against husband from collecting children outside of his specified time with them – order that husband return children to wife should they go to him outside of his specified time with them – orders to be explained to children by family consultant. FAMILY – Property – Initial greater direct contribution by father eroded by the effluxion of time and losses arising from failed joint business venture – s.75(2) adjustments in favour of the mother – insufficient capacity of husband to fund buy out of wife – former matrimonial home must be sold. |
| Family Law Act 1975, ss.11F, 13C, 60CC and 106A |
| Applicant: | MR MCGREGOR |
| Respondent: | MS MCGREGOR |
| File Number: | MLC 2636 of 2009 |
| Judgment of: | O’Dwyer FM |
| Hearing dates: | 23 – 26 August 2010 & 1 September 2010 |
| Date of Last Submission: | 1 September 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 23 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr D.E. Whitchurch |
| Solicitors for the Applicant: | Perisic & Thomas Lawyers |
| Counsel for the Respondent: | Ms M.L. Smallwood |
| Solicitors for the Respondent: | Wilmoth Field Warne |
IT IS NOTED that publication of this judgment under the pseudonym McGregor & McGregor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 2636 of 2009
| MR MCGREGOR |
Applicant
And
| MS MCGREGOR |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This proceeding is a residence contest and an application for division of property. The husband, who presently has the residence of the three children of the marriage, seeks to have the children continue to live with him, whilst the wife seeks a change of residence. It is not unfair to say that the primary focus of the parties in the hearing before me centred on the question of residence.
Hereafter, a statement of fact is to be taken as the finding of fact, unless the context suggests otherwise.
RESIDENCE & PARENTING ISSUES
There are three children over whom the parties contest residence; namely, X born (omitted) 1998 (12 years of age), Y, born (omitted) 2002 (8 years of age), and Z, born (omitted) 2003 (6 years of age).
COMPETING PROPOSALS FOR RESIDENCE
The husband’s
Simply put, the husband wishes to have the children continue to reside with him in the familiar environment of the former matrimonial home and be cared for by him full time in the near and intermediate future as he convalesces from an industrial accident.
The wife’s
The wife wants a change of residence which will see her accommodate the children in premises yet to be found in an area close to the children’s present and intended schools. She will continue to work as a (occupation omitted) in the (omitted) Industry on flexible hours that will see her being able to provide primary care for the children as she did when the parties were together and the husband was working full time. She says she has been the primary carer in the past for the children until recent times and is best able to provide, as she has done in the past, for their educational, extracurricular and emotional needs.
MAJOR ISSUES AND CONCLUSIONS
In respect of the residence issue, the determination of what competing proposal for residence was in the best interests of the children centred on the wife’s allegation that the husband had alienated the children against her. For the reasons set out below, I am satisfied that he has. The issue then was whether the children’s best interests were served by changing their residence to the wife, or attempting through counselling to ameliorate the alienation with the assistance of appropriate professionals, whilst the children remain resident with the husband, so that the necessary relationship between the wife and her children was meaningful. I concluded, for the reasons set out below, that there was no realistic outcome that would ensure that meaningful relationship whilst the children remained resident with the husband. The best interests of the children is served, in my view, by the immediate change of residence supported by professional assistance for all the parties as may be considered appropriate by a family consultant appointed under s.11F of the Family Law Act 1975 (the Act).
BACKGROUND AND HISTORY OF PROCEEDINGS
The husband is 51 years of age, presently in receipt of WorkCover payments due to an industrial injury and available to look after the children on a full-time basis. The mother is aged 34 years and works as a (occupation omitted) in the (omitted) industry and seeks to advance, when able, her qualifications to a higher (qualifications omitted).
The parties first met when the wife was 17 years of age and the husband 34. They began cohabitating in 1993, married on (omitted) 1999 and finally separated on 2 December 2009.
It is agreed by both that up to October 2005 the parties enjoyed a happy marriage and no complaint is made by either against the other in respect of their capacities to be responsible custodians of the children. However, on 5 October 2005 the wife obtained an intervention order against the husband in relation to a significant assault by him on her. The assault occurred in circumstances where the parties were suffering difficulties in relation to a failing (omitted) business, and an expressed, and vigorously pursued, allegation by the husband that the wife was having an affair. The circumstances giving rise to the assault are discussed in more detail below, but it is fair to say that the relationship between the parties from that time onwards deteriorated to a very, very significant degree. The parties thereafter experienced various periods of separation and reconciliation, with the husband at one stage leaving the former matrimonial home to reside at a factory site. Whilst there the wife again obtained an intervention order against the husband on 2 September 2009 when threats were made by him to burn the former matrimonial house down with her in it. They again reconciled for a short time until early December 2009 when the wife left the former matrimonial home, I am sure, due to the high level verbal and physical violence levelled at her, taking only Z with her. The wife agreed in February 2010 to allow Z to return to the husband and her two siblings as it was acknowledged by all that the siblings should not be separated. Consent orders were made reflecting this. The children have resided with the husband since that time.
THE EVIDENCE AND CREDIBILITY OF THE PARTIES AND THEIR WITNESSES
The credibility of the parties and their witnesses was a determinate factor in this proceeding.
Should the husband and his witness, Ms M, have been accepted, then a clear picture would have emerged of the wife as someone unable to discipline her children, unable to restrain herself in physical abuse of the children and as someone who represents a real risk to their physical and emotional welfare. It is to be noted, incidentally, that in furtherance of the husband’s attempt to present the wife in that fashion, he had engaged with the Department of Human Services, but to no avail. The Department has not seen fit to become involved in the matter, and no explanation whatsoever was offered at the hearing as to why that was so. I am more than satisfied that the probable explanation is that the Department did not find the children at risk when in the wife’s care.
The husband was a most unimpressive witness. He presented as arrogant, smug and vindictive. He showed no insight as to how his own conduct may affect the physical or psychological wellbeing of his children. He resorted always to the defence of his position as complying with the children’s wishes and, indeed, invited the court to determine this matter on the basis of the children’s wishes. He freely admits, however, that the children had a close and loving relationship with their mother as late as December 2009. He cannot offer an explanation as to why that relationship has deteriorated to the extent it has since they have been in his care.
Where it came to a conflict between his evidence and that of the wife, I have no hesitation in accepting the wife’s evidence.
The wife presented as far more insightful than the husband, although, in saying that, it does not reflect necessarily a complete insight. I am satisfied, after hearing all of the evidence, that the wife has not responded to the very difficult circumstances that she found herself in as well as she should have. I am satisfied that she was reactive and that some of her conduct, in being reactive, such as shouting at the children, may go some way to reinforcing the alienation which was being structured, encouraged and perpetrated by the husband. The wife may benefit from professional assistance in this regard and my orders reflect this.
In any event, I am satisfied that the wife, since separation, has experienced a nightmarish relationship with the husband and her children. I accept that her children, in the presence and with the implicit, if not explicit, endorsement of the husband, have referred to their mother as a “fucking dog” and made demeaning and denigrating dog barking noises to reinforce the description. I am further satisfied that the language used, which includes descriptions of their mother as a “slut”, “whore” and “druggy”, are all descriptions coined by the husband and used by him in front of the children. The children’s behaviour in my view can only reflect the language of the husband and their repetition in front of the wife by the children is an example of the children aping their father’s conduct.
The husband has inveigled the children in his dispute with the wife at the highest and unrestrained level. Indeed, it reflects the observation of the family report writer, Dr L when she noted that even in her presence, the husband’s “presentation was equally challenging due to his overwhelming and seemingly uncontained anger and hostility he impressed as harbouring towards the mother” and later “… his uncontained anger and hostility towards the mother throughout the interview raised questions of how contained he is generally when in the presence of the children, and the impact this may be having on them.”
On the evidence, I am satisfied that the husband has engendered in the children the notion that the wife has taken from the former matrimonial home household items without consent and against the interests of the children. In this regard, the husband has complained that the wife took the washing machine, depriving him and the children of its utility.
The reality, however, is that in a settlement reached between them, the husband drew up two lists of household goods and she selected the one which she thought would be less intrusive on the children’s needs, the other list having the refrigerator on it. Similarly, the children’s home was burgled and the blame for that was laid at the feet of the wife and the task given to X was to photograph the inside of the wife’s accommodation with a view to discovering the burgled goods. I accept the wife’s denial of involvement in any burglary but find the husband unable to resist blaming the wife for such when that blame when communicated to the children would serve his purpose and further his alienation of the wife from them. The husband’s own evidence confirmed that he kept the children fully informed of the developments in the court case. He solicited their response to the prospect of them going to live with their mother and was gratified by their not unremarkable response when they stated they wanted to live with him.
In an attempt to further blacken her name and paint her as unworthy of the responsibility of caring for her children, the husband accuses the wife of having a drinking problem, supported solely by an observation communicated to him by the children that they saw alcohol in her car and that she drinks and drives. There is no other history or evidence supportive of the wife having a drinking problem. She denies any such allegation. I accept her denial. To counter this unexpected allegation, the wife has voluntarily over many months undergone drug and alcohol screens, all of which proved negative to abuse of those substances. It is not unusual for children, in an alienation scenario, to embellish stories against the alienated parent to the alienating parent to ingratiate themselves. (See Fidler and Bala, ‘Children Resisting Postseparation contact with a parent: Concepts, Controversies and Conundrums, Family Law Review, Vol. No. 1, January 2010 10-47)
The husband called Ms M in support of his position about the wife’s conduct. There was an incident, the circumstances of which are acknowledged to a significant degree by the wife, when the wife was visiting the children in the former matrimonial home. Ms M also entered the home. It is accepted by all that the child, Y, on seeing Ms M enter the home informed her that “the bitch is here.”
The reference to the bitch being a reference to his mother. It is to be noted that the child felt at ease in using that expression to this friend of the husband. The wife became aware that something was said and demanded to know what was said. Ms M, in my view in a very provocative way, saw fit to repeat what the young boy had said. What followed was, I am satisfied, an inappropriate reactionary response from the wife. She, on her own evidence, grabbed the child around the front of his clothing demanding to know what he said. Ms M and the husband, however, state that her actions were something more serious; namely, that she attempted to choke the child and had to be pulled away and restrained by those present. As I said, I do accept that the wife reacted inappropriately, but I certainly do not accept that she attempted to choke the child. I found Ms M, again much like the husband, an aggressive and unimpressive witness. She is clearly aligned with the husband and is a champion of his cause in his fight against the wife. I do not accept that her description of what happened is accurate. I note, however, that there was no attempt by the husband, in any event, or Ms M, to correct the child’s behaviour in making reference to his mother in that fashion. It is very disconcerting that the child should feel free to speak to Ms M in that way, and it is confirmatory, in my view, of the child identifying Ms M as being aligned with the father and accepting of that language. (See Fidler and Bala, op. cit, for research suggesting this behaviour of Ms M and the husband as indicative of alienation scenarios.)
The wife had 6 witnesses, 4 of whom were called and subjected to cross-examination. One was Mr D. From his evidence he informed that he had struck up a friendship with the husband at a time when the husband and the wife ran the (business omitted) in (omitted). He was until October 2005 a friend of the husband. Mr D witnessed the assault of the husband on the wife. He observed that the altercation arose from the husband’s complaint against the wife for dressing “in a sluttish fashion and flirting with a man” at the wife’s birthday party. He observed the husband push the wife against the wall and grab her around the throat with both his hands. He intervened and the wife was able to escape. The husband threw a chair at the wife as she left, which, it appears, nearly hit her. When trying to calm the husband down, Mr D heard him refer to the wife as a “whore” and a “slut” and accused her of playing around on the weekends. These descriptions are consistent with how the children from 2005 began to refer to the wife, their mother. Mr D then went and found the wife at the rear of the (business omitted) and took her to the (omitted) police station.
The description of the assault, both from the wife and Mr D, is very damning of the husband and reflective, in my view, of his general violent demeanour. Mr D was also subjected to threats of violence. He also recites that on two or three occasions during the time they ran the (business omitted) he observed the husband humiliate the wife and talk down to her. He recalls her being called “a whore” in front of him and in front of the children.
After this incident the husband accused him, Mr D, of sleeping with the wife. This is denied. Mr D also recounts threats being made to him by the husband. He also recounts an incident in about 2007, when he observed the husband assault the wife’s brother and the brother running away being chased by the husband who had a knife. He also recounts an incident where the husband exercised physical discipline against X, when he refused to do what he was told, by grabbing X and throwing him towards an office chair which was about four or five feet away.
Mr D’s evidence, which I accept without qualification, is confirmatory, in my view, of the violent, foul mouthed, denigrating, overbearing demeanour and behaviour of the husband. The husband, on that assessment, in my view, falls far short, definitely far shorter than the wife, of a suitable role model for the children, but in particular for Z. This assessment by me is further supported by the wife’s other witnesses as well as her own evidence.
The wife called the partner of her brother, Ms N. She was a most impressive witness. Part of the husband’s case was that Ms N also represented a physical risk to the children, and allegations made against her were that she disciplined the children in an inappropriate physical way; one example of which was the forced washing out of the mouth one of the children. Ms N denied the allegation and gave a history of, until recent times, having a very good relationship with the children. She spoke also of the good relationship the children had with their uncle, the wife’s brother. I accept her evidence without qualification as to the circumstances of the relationship that she knows existed between the children and the wife, and the developing difficulties that the wife had with the children and their behaviour towards her. I further accept that, on a temporary basis, she is prepared to, along with the wife’s brother, accommodate the wife and the children until suitable accommodation is found for them. I am satisfied that she does not represent a risk to the children and would, indeed, be a strong support to the wife and the children in adjusting to the change of residence I have ordered.
The wife also called her mother. She also proved to be a very impressive witness. Although she had moved with her husband to reside in Queensland in 2007, she had a significant role in the children’s lives prior to that date. She confirmed the mother’s capacities as a competent caregiver to the children; that she was the primary caregiver to the children until more recent times. She was also able to confirm that up until recent years her relationship with her grandchildren was “extremely positive and loving.” She made an observation that from 2005 she noticed a change in the boys’ attitude to their mother and the poor language that they used. She confirmed that the husband alleged to her that her daughter was having an affair.
This is important, in my view, because it is consistent with the other evidence I heard and consistent with my own observations that the husband has maintained an unbridled rage against the mother since this time. The maternal grandmother also confirmed, and I accept, that she heard the husband calling her daughter a “slut” and “whore” in front of the children. She observed that since her move to Queensland in 2007 her relationship with her grandchildren has deteriorated. She describes how the children openly swear in front of her and are disrespectful in general.
She also recites an incident in October 2009 when her daughter had called her in a distressed manner, sobbing and trying to explain her concerns. The wife’s mother could barely hear her daughter as the boys were making so much noise behind her. Her evidence was that they were laughing at their mother and swearing to such a degree that she could barely hear her daughter speak. She also could hear the husband in the background encouraging the children to behave in that manner. I accept that this happened and that it is another, amongst many, example of the deplorable encouragement of the husband to have the children engage in behaviour totally destructive of the very important relationship all children should be able to enjoy with their mother.
Specifically on 9 February 2010 the wife’s mother heard Y using the words “fuck” and “shit” and had referred to his mother in terms such as “slut,” “cunt,” “druggo,” “mole” and “slag.” She also observed in the same visit on that day Z directing obscene hand gestures towards her mother. Her observation was that this type of behaviour was commonplace when the children speak about their mother, even when she and the wife were present. In another visit, the children pulled up plants from the garden and threw them at both their mother and her.
The wife also called Ms J. Ms J was able to give evidence about the apparent happy relationship between the parties when she first met them after they established the (business omitted) in August 2004. However, she recites soon after the wife’s birthday in September 2005 that the relationship began to “decline significantly.” She recites how the husband accused his wife of having an affair and broadcast that accusation to Ms J, supported by the husband presenting telephone bills to her alleging they were evidence of her affairs. She observed that the husband would never speak nicely about her from this time and would put things in terms of, “Do you know what the bitch has done to me now?”
Her relationship with the wife stems from their first meeting when she was employed part-time at the (business omitted) but also grew when they together undertook (omitted) studies and worked in the (omitted) industry. They often travelled together to classes, and from her contact with the wife Ms J was able to observe the daily care she provided the children, to the exclusion of the husband. At this time the husband was working long hours as a (omitted) and the burden, from Ms J’s observation, fell to the wife to care for the children as well as work and study in her own time.
She recites an incident when, on prior arrangement for a surprise outing, she came to collect the wife, the husband was furious, accusing the wife of being an incompetent mother, and was complaining how he had to cook the dinner for the children, and then bathe them and prepare their food. It appears, from Ms J’s observations, these negative comments about the mother’s capacity became more prevalent, as well as complaints by the husband about the style of the wife’s dressing.
From her experience and observation of the mother with the children, she always found that it was the wife’s responsibility for the day to day care of the children, the husband having to work long hours as a (omitted). However, significantly Ms J recites her observations in the latter part of 2009 where she heard Y and X call their mother “dog,” a “bitch” and would say to their mother, “Dad said I don’t have to listen to you,” and, “Dad said I don’t have to listen to you; you are just a dog.” Ms J heard the boys speak to their mother in this fashion on a number of occasions. She observed that the children appeared at ease talking to their mother like this.
I accept Ms J as a truthful and accurate witness.
Another witness relied on by the wife, but who was not called for purposes of cross-examination, was Ms K. She provided an affidavit which recalls the conduct of the husband since 2005, including his belittling of the wife and criticism of the clothes she was wearing - they being allegedly too revealing. She also recalls being confronted by the husband with a telephone bill and he alleging it was evidence of her telephoning someone else constantly and having an affair. She recites some unpleasant experiences she had with the children in late January 2010. She observed, for instance, Y calling her mother in a presumably crowded water park a “druggy” and repeatedly said to her, “Hi, druggy; hi, druggy.” He refused to stop this despite requests from Ms K. She described Y’s behaviour as uncontrollable and extremely embarrassing for everybody who attended. Again on the same day at a barbecue she observed Y throwing food at the wife and he refused to stop. Ms K, incidentally, has known the wife for some 22 years and has never known her to take illegal drugs.
Ms P also filed an affidavit in support of the wife, but was not subjected to cross-examination. In her affidavit she refers to her friendship with the wife that has existed for approximately 20 years from the time they attended school together. She is, indeed, Y’s godmother. She deposed to the fact that she had spent much time with the wife and her family, at least once or twice per week, and has done so for many years. She noticed the deterioration in the relationship between the husband and the wife over time, and she has also noticed deterioration between the wife and the children, in particular Y. She recites an incident in February 2010 when Y refused to get out of the car and his language used on that occasion. He used abusive language to Ms P, telling her to “fuck off” and when she got into the car to try and calm him down, he threw a number of items at her and slapped her on several occasions. He had locked himself in the car and continued to use words like “piss off” and “fuck off.” Y had told Ms P that he wanted to go home and be with his father. She also deposed to the fact that she has heard Y use the following words in describing his mother: “arsehole,” “bitch,” “I hate you,” “slut,” and “fucking slut.” She also makes the observation that she has seen the wife trying to appropriately discipline the children by setting rules and boundaries for them. She also makes a general observation of the relationship that she observed between the husband and the wife, describing it as one whereby the wife does “not question the husband” as she appears to have been intimidated by his physical size and the way he speaks to her. She also observes that the husband does not swear in her presence but he is very forceful in his opinions. She also deposes to her observation that over many years it was the wife that was the parent that attended to the day-to-day needs of the children, including helping with homework, feeding, clothing and generally looking after them. None of these matters were challenged by the husband.
The evidence of all the witnesses who have observed the wife with the children over many years, confirms a deplorable change in the children from the good relationship that existed between them prior to 2005 (and on the husband’s own evidence, to late 2009) to what they now observe. There is no logical explanation, in my view, for that change based upon the mother’s behaviour. The only explanation for such a change is that it reflects the husband’s unbridled and obsessive hatred of the wife born out of his anxiety over his young wife allegedly having an affair. He has vented his spleen in the foulest, demeaning and derogative manner against the wife in the presence of the children and has positively encouraged them to behave in the deplorable fashion they now do. There appears no doubt that, at the very least, he has done nothing to discipline the children to prevent such behaviour. It is to be noted that he boasts about how he can discipline them and such behaviour would not be tolerated if it was directed to him. I take that to be an admission that he has not attempted to discipline the children when they behave so deplorably to their mother.
THE CONDUCT OF THE HUSBAND
Having had the benefit of seeing the husband in the witness box, and also the benefit of seeing both the wife and her witnesses in the witness box, I have no hesitation in finding that the behaviour of the husband prior to separation, but particularly since separation and since he has had the care of the three children from February 2010, is confirmatory of an unrelenting process of denigration of the mother in the presence of the children. That denigration has taken the form of violent, aggressive and abusive language in the presence of the children, and also the encouragement of the use of similar language and aggression by the children to their mother. I am satisfied that when the husband experiences and witnesses the children behaving in that abusive manner, he certainly does nothing to prevent it, does nothing to persuade the children that such behaviour is wrong and inappropriate; and does nothing to generate, maintain and nurture a feeling of respect in the children for their mother.
The husband is a violent man and there have been a number of documented instances of his physical violence towards the wife in the wife’s affidavits. I accept those instances as being accurate accounts of what has happened to her. Overwhelming, though, is the evidence by many of his abusive, denigrating and high level verbally violent behaviour to the mother in the presence of witnesses and also, tragically, in the presence of the children.
ALIENATION
There is much literature on what is generally described as alienation by one parent of the other from their children; how to identify it, what the characteristics of it are and what are the best ways of addressing it.
A recent paper by Fidler and Bala (Family Law Review, Vol. 48 No. 1, January 2010 10-47) canvasses much of the literature and approaches to adopt when faced with an alienation case.
They quote Warshak (2001) on how to identify alienation.
Three components must be present for a bona fide identification of parental alienation; namely,
“(i) a persistent, not occasional, rejection or denigration of a parent that reaches the level of a campaign;
(ii) an unidentified (unreasonable) or irrational rejection by the child;
(iii) rejection by a child that is a partial result of the alienating parent’s influence. … as in he defines this as “a disturbance in which children, usually in the context of sharing a parent’s negative attitudes, suffer unreasonable aversion to a person, or persons, with whom they formerly enjoyed normal relations or with whom they would normally develop affectionate relations”
This definition considers not only the role of the child, but explicitly identifies the role of the alienating parent, a necessary component of the problem. Importantly, Warshak’s definition further identifies two critical aspects:
(i) a change from a previously good relationship where the child shares a warm and healthy attachment, or would have been expected to develop a good relationship, and
(ii) a possibility that the aversion may also be applied to others (such as other family members), and not only to parents. This recognition that a child once had a secure attachment to the now-rejected parent, notwithstanding personality or parenting flaws, is of particular relevance for accurate assessment and when remedies are considered, a point to which we return later.”
Fidler and Bala also canvass other methods of identifying alienation, but for the purpose of this judgment, Warshak’s definitions are sufficient. From the evidence I find that:
(i)the husband has indulged in an unrelenting, persistent rejection and denigration of the wife not only to her directly, but significantly to the children in a away that can be readily identified as a campaign;
(ii)there is no reasonable or rational explanation for the rejection of the wife by the children; save to say, by way of the children meeting their psychological need to belong, and perhaps a fear that their mother had abandoned them when she left the former matrimonial home. (See the transcript below of Dr L’s evidence) There was an acknowledged good and meaningful relationship with the wife until she left the home, which relationship has deteriorated dramatically since they were left in the residential care of the husband;
(iii)there is no doubt that the rejection by the children of their mother and the means by which they express it through foul, derogatory and demeaning language, plus their rough conduct and physical attacks on their mother reflect, indeed, apes the husband’s conduct towards her.
(iv)The children are characteristically now estranged from members of the wife’s family and friends with whom they previously enjoyed very good relationships.
I am satisfied that this case is a classic case of parental alienation perpetrated by the husband against the wife.
The effects of alienation
Fidler and Bala (p. 20-21) provide a concerning assessment of the effects on children of alienation. They concluded:
“The literature consistently reports that alienated children are at risk of emotional distress and adjustment difficulties and further, at greater risk than children from litigating families who are not alienated. Clinical observations, case reviews and both qualitative and empirical studies uniformly indicate that alienated children may exhibit:
(i) poor reality testing;
(ii) illogical cognitive operations;
(iii) simplistic and rigid information processing;
(iv) inaccurate and distorted interpersonal perceptions;
(v) disturbed and compromised interpersonal functioning;
(vi) self-hatred;
(vii) low self-esteem (internalised negative parts of rejected parent, self-doubt about own perceptions, self blame for rejecting parent or abandoning siblings, mistrust, feel unworthy or unloved, feel abandoned) or inflated self-esteem or omnipotence;
(vii) pseudo-maturity;
(viii) gender identity problems;
(ix) poor differentiation of self (enmeshment);
(x) aggression and conduct disorders;
(xi) disregard for social norms and authorities;
(xii) poor impulse control;
(xiii)emotional constriction, passivity or dependency; and
(xiv) lack of remorse or guilt.”
Further on (p.21) they reference other research showing responses from adult alienated children:
“Amy Baker’s results from her qualitative retrospective study of adults alienated as children are sobering. Many of these adults suffered from low self-esteem, having internalised a negative characterisation by the alienating parent of the rejected parent. Self-hatred, self-blame and guilt for abandoning younger siblings were noted. Seventy per cent disclosed suffering significant episodes of depression. Approximately one third of the sample reported having had serious problems with drugs or alcohol during adolescence, using such substances to cope with painful feelings arising from loss and parental conflict. The respondents in Amy Baker’s study reported that their own experiences and memories did not match the picture painted by their alienating parent, which caused them to experience self-doubt about their own perceptions and feelings about themselves and others. They had difficulty trusting that anyone would ever love them; two-thirds had been divorced once and one quarter more than once. Consistent with these studies and clinical literature, Amy Baker’s respondents reported that they became angry and resentful about being emotionally manipulated and controlled; eventually this negativity affected their relationship with the alienating parents. About half of Ms Baker’s sample reported that they had become alienated from their own children. Relevant to the controversy over how much weight to give children’s preferences, whether or not we should heed their wishes, and if they mean what they say, Amy Baker reported that while most of the adults distinctly recalled claiming during childhood that they hated or feared their rejected parent, and on some level did have negative feelings, they did not want that parent to walk away from them, and secretly hoped someone would realise that they did not mean what they said. Similarly, Clawar and Rivlin (1991) reported that 80 per cent of alienated children wanted the alienation detected and stopped.”
The affects on children of alienation in the short and long term are very damaging to psychological health and it is incumbent on this court to redress such in the best interests of the children. The issue for me is to determine the best way of doing so.
THE FAMILY REPORT WRITER’S EVIDENCE
In a report prepared by Dr L for the Court, after interviews with the parties and the children, and after making enquiries of Mr P, who had a short involvement with the family, it is fair to say Dr L proposed an interim regime whereby the children continue to live with the father whilst the time spent by them with the wife was increased. She anticipated a review of how that went.
However, both the husband and the wife were adamant that a final decision be made by me and that the interim proposal was not acceptable to them.
Dr L was called and questioned by both parties.
In her written report Dr L raised the issue of potential alienation by the husband without exploring it further, other than to highlight aspects of the children’s behaviour that may be indicative of it. Significantly, in my view, Dr L observed a very warm relationship with the wife and Z, that X was friendly and Y moved to be closer to his mother during the time spent together. Not behaviour, I would suggest, indicative of the relationship the husband would have me believe exists between the children and the mother.
Those observations are consistent with those reported by Mr P. Dr L notes that:
“Mr P advised that he had sought only the mother and the children be in his rooms on the day of observation and the father was not on the premises. He noted the affection and loving bond that was exhibited by the children with their mother, with X in particular. Mr P informed the writer that he had also thought it possible the children were receiving confused messages, unconsciously from their father whose anger towards the mother appeared uncontained.”
In her oral evidence given before me, Counsel for the wife put various contentions about the behaviour of the children and the husband, in the context of alienation, seeking Dr L’s response. It is edifying to repeat that aspect of her evidence. I am of the view that the contentions put to Dr L are a true reflection of the facts of this case, and Dr L’s responses are confirmatory of alienation.
“Ms Smallwood: Yes, and indeed family – children learn by example, don’t they?
Dr L: It’s possible to model that behaviour, yes.
Ms Smallwood: Sorry. Sorry, I’m having trouble catching that?
Dr L: It’s possible, yes, to model that behaviour for all children, yes.
Ms Smallwood: It’s possible to model any behaviour, good and bad, isn’t it?
Dr L: Yes
Ms Smallwood: And that’s really how kids learn. “Do what I say, not what I do”, never works does it?
Dr L: many children adopt that attitude, yes.
Ms Smallwood: And when you hear your father call your mother a ‘fucking dog”, you do it too, perhaps don’t you?
Dr L: Yes
Ms Smallwood: Yes and the interest in this situation is that the children do call their mother a “fucking dog”, the brothers. That’s unusual for boys their age, in your experience, wouldn’t you say, to use language of that calibre?
Dr L: Unfortunately in the unit I work at the (omitted) Hospital, no.
Ms Smallwood: I know that children…
Dr L: It’s unacceptable behaviour.
Ms Smallwood: …Often use dirty language, but they hear it
Dr L: It’s unacceptable behaviour, but it’s not unusual in terms of the children that I work with…
Ms Smallwood: Okay I accept that.
Dr L: …that are quite traumatised, but it is unacceptable at either level.
Ms Smallwood: Yes, and it’s of course my submission – well, ultimately my submission, my client says, that they have heard their father refer to her in those terms, and if that’s the case, then it’s probable the children would ape that in terms of aggression towards their mother. Correct?
Dr L: That’s a possibility, yes.
Ms Smallwood: Yes and particularly if they were living in a situation where the father was violent towards their mother, their mother was, if you like, a bit of the underdog from a child’s point of view, the less powerful person. They are going to side with the person that they see, in their limited way as the more powerful personality, aren’t they?
Dr L: Yes
Ms Smallwood: Yes, and that’s one of the dangers of domestic violence isn’t it?
Dr L: Yes.
Ms Smallwood: That children do identify…
Dr L: It’s survival…
Ms Smallwood:… with the basher rather than the bashee?
Dr L:… It’s a survival instinct to – to survive by – absolutely yes.
Ms Smallwood: Yes, of course, that’s right. That’s right, yes. And so if we look at this case and we see the things that the children say, and it’s just not parent against parent. There are many people who say that the husband – women who say that the husband has called them a “slut” and a “whore”. The children call their mother a “slut” and a “whore”, the boys. Once again, if his Honour is to find that it’s very likely that those boys picked up that – not only the language, but the concept, the concept of how you speak to women, who women are, what they are, they are things that will augur very badly for the children’s overall social development and place in society. Would you agree with that?
Dr L: Without help and without actually addressing those things, yes.
Ms Smallwood: Well, forget the help?
Dr L: Well, without anyone addressing those issues, yes.
Ms Smallwood: Yes sure, okay?
Dr L: To take that into adulthood will be problematic.
Ms Smallwood: If they are left where they are…?
Dr L: If left without any help at all, yes, they will take that problem most likely into adulthood.
Ms Smallwood: Yes, and if they are left where they are and there is therapy which fails or therapy which just doesn’t get the message through, that augurs badly too, doesn’t it?
Dr L: It’s a possibility, yes.
Ms Smallwood: And indeed if you are living in a situation where there is a norm, possibly if I can just reverse back a little bit there. It’s true, is it not, that part of the human condition is to yearn to belong? Would you agree with that? Everyone likes to belong?
Dr L: I think so, yes.
Ms Smallwood: Yes, and in fact, belonging really is pretty pivotal to personal happiness and development isn’t it?
Dr L: It’s about survival.
Ms Smallwood: Yes, and it doesn’t really matter where you belong, as long as you belong?
Dr L: I think it’s a basic human instinct.
Ms Smallwood: Lots of ways to do everything…
Dr L: Yes, yes. I would agree with that.
Ms Smallwood: But you need to feel you belong, yes. And if you are living in a situation where Mr McGregor has a very low opinion of Ms McGregor, has habitually since 2005 at least, referred to her as a “fucking dog”, “slut”, “whore”, the children have been present and heard this as a matter of fact and course in the house, it is extremely likely that they are now demonstrating a similar, if you like, profile because they want to belong in their home. That’s more than likely, isn’t it?
Dr L: It’s a possibility, yes.
Ms Smallwood: And the only way to change that sense for them is to remove them from that environment and place them in a different environment where different messages and a different reason to belong can exist. You would have to agree with that too, wouldn’t you?
Dr L: For some children, that’s workable. For others, there is a change within the parties; that also works. So I guess it can work with both sides.
His Honour: But you are assuming the capacity to change?
Dr L: Absolutely, yes. I mean I’m unsure whether…
His Honour: What if that assumption is not borne out?
Dr L: It’s an assumption whether either or both parents are able to and prepared to adopt change, absolutely.
Ms Smallwood: And an example I will give you which I actually gathered, I think, from your report, we know that the boys are foul mouthed towards their mother and so forth. That’s pretty clear, okay, and I won’t go back there, but you also observed in your report that Z was really keen to see her mum, wasn’t she?
Dr L: Sorry Z?
Ms Smallwood: Z?
Dr L: Yes, it was a very loving relationship outside in the hallway. Yes.
Ms Smallwood: Yes. Yes, and she in fact was really excited at the prospect of being able to see mum and ran in and hugged her and so forth and so on?
Dr L: Yes.
Ms Smallwood: There is evidence that on one occasion when the two boys and Z – this is following separation after they had been living with their father in that environment since February this year when Z has been there too, there is evidence that on one occasion Z, when her mother turned away, gave – behind the mother’s back gave her the finger, you know that rude finger sign. Now that was with all – when all the kids where there. That would suggest, wouldn’t it, that Z in fact, on that one occasion was, if you like, joining in the level of disrespect for her mother even though we know that that’s not how she feels?
Dr L: That’s possible yes.
Ms Smallwood: Yes, and the fact that she gave her mother the finger on that occasion behind her mother’s back in the presence of her brother’s indicates that if she is left in that environment, they are all left in that environment, she will gradually form an attitude to her mother just like Y’s outward attitude appears to be. Correct?
Dr L: If left in the situation without any change and help, yes, that’s most likely.”
The assumption underpinning the qualified answer at times by Dr L that it may be possible to change the relationship of the wife with the children if the parties change, in this instance if the husband changed his behaviour and attitude, is not in my view of any application in this case. I am not persuaded that the husband has any insight into his own conduct and its affect, or any motivation to effect the necessary change.
GIVEN ALIENATION, SHOULD THERE BE A CHANGE OF RESIDENCE
Fidler and Bala discuss the options open to the Courts when alienation is found. There is a description of the various levels of alienation, as well as associated troubling behaviours such as “realistic estrangement” and “enmeshment”. From the evidence I am satisfied that in this case there is clear, and severe alienation on the part of the husband and that he did not exhibit sufficient insight or motivation for change that would assure me the children’s behaviour would moderate in any way, whilst residing with him; that would ensure a meaningful relationship between the children and their mother into the future.
Of course, any change of residence carries with it risks. I am of the view that the least detrimental long-term option is to place these children with their mother who is the one more likely to promote overall a healthier psychological development and adjustment, including, but not limited to a healthy relationship with the husband.
To leave the children residing with their father would be to leave them with a parent whose parenting is not only compromised, but in my view emotionally abusive, and consequently, the risk associated with not separating the children from their father is far greater than any potential risk of changing their residence to their mother.
THE CHILDREN’S WISHES
Whilst I did not have the benefit of an Independent Children’s Lawyer to represent and articulate the children’s wishes, there is no doubt as to what their expressed wishes are at this time. Unequivocally, if put to them, they would articulate a preference to live with their father and would, I am sure, support that wish with accusations against the mother as set out in reports and material filed at Court. However, this is to be expected where there is alienation and the literature is replete with examples of such.
My brother Federal Magistrate Altobelli in a paper entitled “When a Child Rejects a Parent” delivered to the College of Law, Advanced Family Law CLE, 14 August 2010 discusses the dangers of seeking the wishes of children in alienation cases. In referring to expert psychological opinion on the issue, he concludes that:
“Thus, in Australia, the usual processes for ascertaining the views of the child i.e. the family or expert report, and the Independent Children’s Lawyer becomes, for the alienated child, potential vehicles for harm.
The concerns about giving a voice to the alienated child go further. The concerns about adversarial legal processes have been noted above. Johnston and her colleagues (see Johnston, Roseby and Kuehnle, ‘In the name of the child’ at p.367) warn that a contributing factor to child alienation is an adversarial litigation process in which powerful professionals are seen as allies or enemies. The risk is that giving an alienated child a voice allows them to “buy in” to this potentially harmful process, or to “take sides”, and to engage in the “tribal welfare” that so typically occurs in these cases. The great risk of giving a voice to the alienated child is that it consolidates and validates in their own minds their own negative convictions, and gives them a platform.
In any event, as Johnston and her colleagues note, even when the views of the alienated child are ascertained, their inaccurate reasoning and loose logic is hardly the sort of view that is credible, or would be given weight to.”
I highlight this concern expressed by FM Altobelli because of a concern expressed by Counsel for the husband about the lack of an Independent Children’s Lawyer who could inform me of the children’s wishes, and further because of a request that I seek another family report to ascertain their views more specifically as to where they wish to reside. Clearly the issue of the children’s wishes as expressed, or likely to be expressed, in a case of alienation is problematic.
In this instance, I am satisfied that the question of the children’s wishes pivots on the issue of what weight I should give them when considering what is in their best interests. It would be wrong, in my view, with the history of these children, to uncritically accept the articulation of a wish to live with their father as being determinate or even significantly weighty to adjust the balance of considerations in favour of them remaining in the residence of the husband. There are indicators, in my view, that I can take some comfort from, that suggest a more significant underlying desire on the part of the children to maintain in a meaningful relationship with their mother, which meaningful relationship can only be encouraged and maintained if the children’s residence is changed. Those indicators are the observations of Mr P and Dr L of the children’s relationship with their mother when given a less restrained opportunity to express it in positive terms by word and action. Also the literature highlights the experience of some alienated children about the relief they experience when it is stopped and they are free to love their alienated parent. Also the literature gives examples of where alienated children, when placed into the residential care of the apparently rejected parent, settle quickly and effectively in their new environment. It goes without saying, it is my hope that this will occur in this case.
ISSUES OVER ACCOMMODATION
Although the husband put his case for the residence of the children, in part, on his ability to provide the former matrimonial home as familiar accommodation for the children close to their present and intended schools, the reality is he does not have the financial capacity (as shown by the case he put at the hearing) to fund the buy out of the wife’s entitlement from the matrimonial property. The matrimonial home must be sold and he will, like the wife, have to find suitable rental accommodation as close to the schools as possible.
The future accommodation for the children in the near to medium future will have to be rental. Whilst the husband at least has the benefit of the former matrimonial home until the sale of it to find accommodation into which he can move, the wife must for the immediate future accommodate herself and her three children in her brother’s house until she finds suitable accommodation. Her evidence was that she had made enquiries of agents in the area and believed she could find such accommodation within weeks of looking. She had not committed herself to accommodation until she was aware of the outcome of this case. It must be said that the wife’s immediate proposal for accommodation is problematic in that she is reliant on her brother and his girlfriend to house her and the children. Whilst there are spare bedrooms for them, it is not going to be easy during what I anticipate to be, initially at least, a difficult period of adjustment for her and the children to the change of residence I intend to order. Be that as it may, I am of the view that the change must happen now; that it would be counterproductive to wait until she finds alternate accommodation, as the potential for more harm to be done by having the children under the direct prejudicial influence of the husband and his previously exhibited lack of restraint in his criticism and alienation of the wife. My order for the immediate change of residence is made on the assumption that the wife will find appropriate accommodation in the near future and the time the children and her spend at her brother’s house is relatively short. Having said that, however, there is the benefit of the wife having the assistance of her brother and Ms N in settling the children into the changed residence regime.
EQUAL SHARED PARENTAL RESPONSIBILITY AND EQUAL TIME
There is no doubt that both parties love their children dearly.
For reasons already addressed, however, the husband’s present attitude to the wife and his lack of understanding about the emotional needs of the children, vis-à-vis a meaningful relationship with their mother, has led to my conclusion that their best interests are served by residing with her. Despite the fact there has been physical violence in the marriage perpetrated by the husband and that his verbal abuse is properly categorised as violent conduct, I am of the view the husband has much to offer by equally sharing the parental responsibilities for the children with the wife. The wife also is of that view and does not seek sole responsibility. On considering whether there should be equal time with both, I am of the view that, as matters presently stand, particularly in regard to the issues the husband has with the wife and their inability to communicate in a child focused way, equal time for the children with them is not in the children’s best interests. Their best interests, in my view, are served by the residence and time with regime spelt out in my orders.
INVOLVMENT OF PROFESSIONALS
Concern was expressed by me, and Dr L about the number of professionals involved with the children in this case. In addition to the family report writer, Dr L, Mr P, Ms G and Ms V have all had a role to play and have interviewed the children. The children have expressed a desire not to see any more psychologists. Both Mr P and Ms V’s involvement was for therapeutic purposes; the others were for assessment purposes. Unfortunately, but necessarily, my orders will introduce potentially more strangers to the children; namely, the senior family consultant, or her nominee being just one – there may be others arising from my orders.
Be that as it may, there is a manifest need to provide support to the parents and the children to help them through the change of residence and the re-establishment of a sound and proper relationship between the children and their mother. That support should be professional therapeutic counselling provided by a suitably qualified and experienced counsellor. The difficulty the parties experienced with Mr P was that they ran out of money. The most readily available support for this family, it would appear from enquiries made by the parties, is from professionals requiring private funding. To help facilitate this, from the proceeds from the sale of the former matrimonial home, I shall order that $15,000 be put aside to meet this expense. I shall leave it to the parties, with the assistance of the Senior Family Consultant to select the appropriate counsellor. Mr P should not be excluded from consideration, particularly as he has had involvement with the children already.
The literature warns about professionals becoming caught in the web of an alienating parent and the risk run that they become partisan and an instrument used to reinforce the alienation. Concern was expressed by the wife and, indeed, the family report writer about the role played by Ms V after her engagement by the husband to assist the children in their relationship with their mother. The criticism levelled against Ms V was her failure to engage the mother in any way with the process undertaken and her inability, even within her own written report to see the inconsistency where two children alleged the same incident happening to them when clearly that could not be the case. Ms V failed to be alert to the experience of others that when this occurs, it is consistent with children’s responses to alienation. (Again see Fidler and Bala, op. cit) Although the husband is keen to continue to engage Ms V to continue her work with the children, I am not persuaded her involvement is in their best interests. Accordingly, I intend to restrain the husband from employing her further.
SECTION 60CC CONSIDERATIONS
In respect of the primary considerations set out in s.60CC(2) of the Act, I am of the view that the children would benefit from a meaningful relationship with both parents, but to ensure that occurs, the children should reside with their mother and have time with their father as set out in my orders. In doing that, I am satisfied that they will be protected from physical and psychological harm and will be less likely to be exposed to abuse, neglect or family violence. On the other hand, if they were to remain with their father I would not be so satisfied.
In respect of the additional considerations as set out in s.60CC(3):
(a)The views of the children and what weight I have given to them has been discussed above;
(b)The children’s present relationship with their mother is problematic because of their alienation from her, but I am confident it will quickly resolve, with professional assistance, into a more meaningful one and that through a change of residence the children will once again be able to enjoy and benefit from involvement with the wife’s extended family and network of friends with whom they previously had a close relationship;
(c)For the reasons set out above, I am satisfied that of the two, should the wife have residence of the children she would be better able to facilitate the children’s relationship with the husband, whereas if they remain with the husband, there is little prospect of the children maintaining a meaningful relationship with the wife because of the husband’s alienation;
(d)The change of residence is unquestionably going to be traumatic, but with the assistance of timely and professional counselling, the trauma would be diminished and a stable effective regime established which would see the children residing with the wife and having substantial time with the husband. There is the immediate issue of accommodation for the wife and children, but I am persuaded the wife and the children will cope in the very near future whilst living at her brother’s house and will find suitable accommodation in the not too distant future.
(e)Not relevant.
(f)The consideration of the parties’ capacities to provide for the children’s needs, including their emotional and intellectual needs has been canvassed above. By changing residence, however, the children will be able to re-establish previously beneficial and good relationship with the wife’s expended family and friends. Those that gave evidence impressed me as individuals capable of enhancing the children’s lives through their own personalities and intelligence. The husband, incidentally, presented as an isolated individual and the only friend I heard from was not impressive. The children face a risk of isolation should they remain in his primary care.
(g)There is nothing further to add to this background that has not already been covered above.
(h)Not relevant.
(i)– (k) These considerations have been covered.
(l)This was not a consideration that needed to be addressed, save that both parties sought a final hearing and resisted the family report writer’s recommendation that the matter be adjourned off for review after trying therapeutic counselling.
(m)No other facts or circumstances were considered relevant, save to say that the husband’s case centred on allegations of physical abuse of the children by the wife (and others), which I find unsubstantiated. The children’s recounting of such to various people is reflective of their alignment with the husband and the alienation they have experienced. The literature confirms this as a potential factor in alienation cases and I am of the view it is in this case.
CONCLUSION ON RESIDENCE AND PARENTING ISSUES
This is not a case that allows nothing to be done, that allows the status quo to continue, because to do nothing in this instance, in my view, is to do something. That something is to destroy any prospect of a meaningful relationship between the children and their mother.
I am confident that should the children continue to live with the husband they will not have a meaningful relationship with their mother. Such a relationship should be a primary relationship, a lasting and enduring relationship for the rest of each of their lives. Through the unrelenting abusive conduct of the husband, that relationship has been severely interfered with and compromised, and the loss of that relationship, should it be allowed to happen, is unique and can never be replaced. As set out above, the serious negative consequences for the children, both in the immediate and, indeed, for the rest of their lives are very serious.
As I have found, the husband does not have insight into the affects of his behaviour on the children’s welfare. I am confident, however, that the wife shows considerably more insight into the affects of parental behaviour and the emotional and psychological needs of the children. In my view, the wife is able to maintain a meaningful relationship between the children and their father if they reside with her; whereas, on the evidence before me, there is little to no prospect of the children enjoying a meaningful relationship with their mother should they continue to reside with the husband. Additionally, the husband and his behaviour does not represent a suitable role model for the children and in that regard I refer back to the evidence of Dr L.
There were two instances where the wife’s time with the children was unduly interfered with by the husband. One was when he received a call from one of the children to collect him, to which he responded immediately by turning up to collect the children and the second was when Y took it upon himself to ride his bicycle home to his father. I am satisfied there was no good reason for the children to seek out the company of their father; certainly no protective reason. The husband clearly has taken this conduct as an endorsement of him and I have no doubt implicitly, if not explicitly, acknowledged this conduct as a test of the children’s loyalty to him. I am concerned that the children may do similar things again during the initial period of adjustment to the changed residence regime. The husband should he act as he did in the past would be clearly undermining the purport of this decision and in order to prevent that undermining and the encouragement by the husband of the children to act inappropriately, I have restrained the husband from collecting the children during the times they are with the wife and ordered him to immediately return the children should they, or any one of them, come back to him during any time they should be with the wife.
To assist in this regard, it is important that the children have some understanding of what consequences their actions may have. They also need to understand, and be reassured, that their relationship with their father will continue, but under different circumstances. Consequently, I have directed the Senior Family Consultant of this Registry, or her nominee, to explain the orders and their effect to the children.
My orders provide, based upon the expert opinion gleaned from the research on alienation, for there to be an uninterrupted period of time by the wife with the children before the children next see their father. This is to allow them to settle into residence with the wife without the immediate presence or influence of the husband.
It is school holiday time now and my orders provide for the wife, in effect, to have the last week of them with the children - the husband having had them for the first week. This gap will also need to be explained to the children and for them to be reassured that they can rightly expect to see their father by a defined date not too far off into the future. To assist in the maintenance of the relationship, the husband can communicate with the children by telephone on a regular basis as set out in my orders.
Finally, it is evident that both parties stand to gain by attending a Post Separation Parenting Course, even though the husband has already attended one and even though he is of the view that the course was unnecessary, as he knew it all already and came away with nothing new. The changed circumstance now may induce, hopefully, a more receptive response from him.
PROPERTY
The asset pool of the parties is relatively small, the most significant asset being the former matrimonial home.
Save for an issue relating to an entitlement of the husband to receive $17,300 by way of a Table claim for his industrial injury, the parties have agreed on the composition and value of assets and liabilities.
Assets
The former matrimonial home, Property S
$450,000
Wife’s Ford (omitted) car $14,000
Husband’s Commodore car $16,000
Shares held by husband $1734
Husbands Superannuation $24,039
Wife’s Superannuation $13,600
Money received by the wife pursuant to orders in February 2010
$10,000
TOTAL:$529,373.00
Liabilities
The only liability of the parties relevant to a property distribution is the mortgage on the former matrimonial home in the sum of $292,454.The net pool, not including the Table claim is therefore $236,919.
In my view the husband’s entitlement to the Table claim is something that should be added to the asset pool. From the subpoenaed documents it is evident that claim can be realised within 14 days of the husband requesting payment. It is not subject to contingencies or the vagaries of litigation and should be properly classified as an asset of the parties.
The net total asset pool of the parties is therefore, when the Table claim is included, $254,219.
For reasons I have already alluded to I intend to take from the asset pool the sum of $15,000 to fund the necessary support counselling for the parties and the children. That funding should be considered as an equal contribution by both the parties. I have taken that sum off the net value of the asset pool, leaving a sum of $239,219 to be distributed between the parties in accordance with their entitlement.
Contribution
The parties began living together in 1993. During their time together they both worked, save for when the wife was a full time carer of the children. The contribution can be said to be equal, taking into account their direct and indirect contributions. The husband, however, maintains he is entitled to an adjustment in his favour as a consequence of a greater direct contribution. He was the recipient of a net award of $170,000 for a personal injury he suffered, which sum was applied to the acquisition and building of the former matrimonial home.
However, I am satisfied on the evidence that the mortgage on the property was increased to help fund the purchase and conduct of the (omitted) business which proved unsuccessful, and because of which the mortgage on the property increased from $70,000 to somewhere near its present level. The wife argued that such contribution should be ignored and no adjustment made in favour of the husband due to what could be considered the dissipation of that contribution through the loss incurred by the (omitted business) and further through the effluxion of time having regard to the length of the parties relationship, namely 17 years. I am persuaded by the wife’s argument and no adjustments should be made in the husband’s favour as a consequence.
Accordingly, the contributions by the parties should be considered on a 50/50 basis.
Section 75(2) factors
The husband sought an adjustment in his favour due to his uncertain medical future. His future is uncertain and ill defined, though it appears he has intentions to retrain and find employment after he receives his anticipated compensation from a common law claim against his employer. There is uncertainty as to the likely success of such a claim and there is also uncertainty as to the length of time such a claim might take to be finalised. In any event the husband is in receipt of WorkCover payments. Because of my decision to change residence from him to the wife, he will be relieved of the extra burden of being the primary carer of the children, save for Child Support payments assessed against his income.
The wife, however, now has the burden of providing accommodation and being the primary carer of the children. She will carry this burden for some considerable time, having regard to Z’s age of 6. In all the circumstances, an adjustment of 15% in her favour on the net proceeds available for distribution of $239,219 is appropriate. Whilst that adjustment may be considered at the higher end of the range, because the asset pool is so small, in order for the wife to have sufficient funds, an amount of 15% is justified.
Accordingly, the wife has an entitlement to $155,492.35 of the asset pool available for distribution. She takes with her the Ford motor vehicle ($14,000), her superannuation ($13,600) and an advance payment of $10,000, a total of $37,600, leaving a payment to her of $117,892.35.
Justice and Equity
The husband proposes that the wife receive a payment of $50,000 within 60 days of the orders being made. It was evident from the evidence given that the figure of $50,000 was one seized upon based upon the capacity of the husband to raise funds. His evidence was that he could raise $350,000, but no more. From that $350,000 he had to refinance the existing mortgage in the sum of $292,454. He also had to fund his legal fees. Clearly with that limitation on his level of finance the husband falls very far short of the cash payment required to satisfy the wife in the sum of $117,892.35 should his desire to retain the former matrimonial home be realised. The only just and equitable way for the wife to receive her entitlement is for the sale of the former matrimonial property. Accordingly my orders provide for this.
My orders provide that from the net proceeds from the sale of the property, the wife will receive her percentage entitlement, less those items she already retains in her possession. It is appropriate in the circumstance that the distribution be based, since the property is to be sold, on a percentage basis, rather than a fixed amount.
Because I am less than confident that the husband will be co-operative in the implementation of my orders I have made provision for the Principal Registrar of this Court, pursuant to s.106A of the Act, to execute any deeds or instruments to give effect to my orders.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Date: 23 September 2010
0
0
1