MIDDLETON & MIDDLETON
[2014] FCCA 41
•21 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MIDDLETON & MIDDLETON | [2014] FCCA 41 |
| Catchwords: FAMILY LAW – Entrenched property and parenting dispute – relatively small pool of assets – inordinate and prolix examination of parties’ financial history and dealings – necessity for court to concentrate on essentials – whether husband really incapable of manual work despite medical diagnosis – whether husband working for his parents’ business – whether husband violent – assessment of the parties’ contributions – wife to obtain 80% of property pool – father’s application for change of residence not supported by family consultant – children to remain living primarily with mother. |
| Legislation: Evidence Act 1995 (Cth), ss.91, 92, 135, 140 |
| X v Australian Taxation Office (No.2) (citation redacted) Bevan v Bevan [2013] FamCAFC 116 |
| Applicant: | MR MIDDLETON |
| Respondent: | MS MIDDLETON |
| File Number: | MLC 10233 of 2012 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 14, 15, 16, 17 and 21 October 2013 |
| Date of Last Submission: | 21 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 21 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | SMR Legal |
| Counsel for the Respondent: | Mr Rattray |
| Solicitors for the Respondent: | Thexton Lawyers |
IT IS NOTED that publication of this judgment under the pseudonym Middleton & Middleton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLC 10233 of 2012
| MR MIDDLETON |
Applicant
And
| MS MIDDLETON |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a bitterly and vigorously contested dispute which involves both parenting and property matters. Unfortunately, the parties have seen fit to expend enormous amounts of energy, and no doubt time and money, putting huge tranches of material in front of the Court. I say unfortunately because the children’s issues were in one sense always within a confined range, and the property pool is extremely modest when compared with the money that the parties must have spent on legal fees, culminating in a five day trial.
I will return to the way in which I propose to deal with these tranches of material in due course, but it is sufficient to say that I do not propose to replicate the myopia that the parties themselves have brought to bear upon the production of their materials. For the reasons that follow, there will be children’s orders that provide for the mother to have sole parental responsibility, the children to live predominantly with her and spend time with the father. In respect of property, the wife will receive 80 per cent of the available property pool.
Some agreed facts
It should be noted that although the parties are now divorced, it may be appropriate as the occasion requires, to refer to them as husband and wife rather than applicant and respondent or father and mother. The applicant husband was born on (omitted) 1976 and the wife on (omitted) 1977. The parties married on (omitted) 1999 and had known each other before then. They separated on 24 June 2012. The parties have two children X, born (omitted) 2008 and Y, born (omitted) 2011. (It should be noted that a number of different dates of birth are asserted in the materials – these are taken from the wife’s first affidavit). The husband was undertaking an apprenticeship as a (omitted) at the time he commenced his relationship with his wife, and qualified finally in about 2001. He was then injured in a workplace accident in 2002.
Thereafter, he received workers’ compensation payments for some two or so years, and after that he received Centrelink payments in the form of a disability pension which he continues to receive. He is paid it would seem, some $350 or $375 per week. The wife received a carer’s pension, and it appears, although the matter is not entirely clear, that this was from 2002 to 2005. Both parties come from what are close knit families of (omitted) origin. For reasons which will become apparent, this ethnic background is of some significance to certain aspects of the case.
Matters that are disagreed
As I have already indicated, the parties’ conduct of their respective cases has been prolix in every way. The amount of material filed is vast considering the subject matter of the dispute, and the case itself took five days when with more economy it should have been possible to finish in far less time. I do not propose to reward the parties for their endeavours by condescending to a decision which seeks to both detail and resolve every aspect of controversy between them. I will give some examples in due course of issues that should not have been raised, let alone raised in the length and detail that they were.
This judgment will concentrate on the things that I think matter. There is a significant issue between the parties as to whether the husband was injured either at all in 2002 or, in any event, anything like as badly as he says. An interrelated issue is whether he is able to work either full-time or part-time and whether he does so in a business controlled and run with his parents. There is another significant issue which is to an extent interrelated with the previous one, namely, whether the husband engaged in wanton wastage during the relationship.
In part, this is put in relation to the husband’s expenses on his major enthusiasm, namely, hunting. In part, it is also put as to a $98,000 payment made by the husband to his parents out of the workers’ compensation payment he received. A further and once again interrelated issue is the extent of the parties’ contribution to the financial aspects of their relationship, both at inception and throughout the relationship. Not only do the parties vividly disagree as to who had how much money at the start, they vividly disagree as to who contributed how much by way of earnings and otherwise throughout.
There are further issues as to alleged contributions made by the husband’s parents from time to time. A further area of significant dispute is the question as to the extent of family violence in the relationship. The wife puts her case as a Kennon case and the husband denies that such violence as there was would meet the test that Kennon requires. A further issue in the case is the extent to which the wife is correct in her apprehensions that the husband has been violent to the children and X in particular, most particularly in August of 2013.
Interrelated with this is whether the mother’s fears of the father’s violence towards the children are well founded or whether they are part of a construct in her mind whereby she will never properly foment a relationship with the father. That issue is the one that has led the father to seek sole parental responsibility in his favour and that the children live with him. There are also significant issues in the case as to the credit of the two primary witnesses, and indeed as to the credit of all the other witnesses with the exception of the professionals.
The judgment will also need to explain in more detail than was practicable at the time, as to why it was that I excluded evidence of possible wrongdoing on the part of the husband and his father and allegedly false evidence given by them and the paternal grandmother in this case arising out of issues to do with the family’s former (omitted) licence.
A further issue that requires to be addressed is the extent of parenting skills of the father and the extent to which the home of his parents where he now lives is or is not an appropriate place for the children to spend time.
The evidence
Mr Middleton
The husband was called and confirmed that his trial affidavit was true and correct. He was cross-examined at very considerable length, and I do not propose for an instant to record each matter dealt with. Cross-examination commenced with an examination of various licences possessed by the husband including a licence to perform high risk work (part of exhibit AM9 to the wife’s trial affidavit – all exhibit number references beginning AM refer to annexures to that affidavit). The husband said he did not know if he had such a licence but when confronted by the document, he said he needed that licence to take employees onto work sites.
He said he was involved in (omitted) work and had no licence in respect of heavy machinery. He was further cross-examined about a (omitted) licence. This (omitted) licence is indicated under a “Notice of Assessment for a Licence to Perform High Risk” work issued on 2 June 2010 which is also part of exhibit AM9. It shows a licence to perform (omitted) work for two months. The husband said he was unable to say when he had obtained a (omitted) licence. He said he had no idea when he got a (omitted) licence. He said he had driven his parents’ (omitted) but denied using the (omitted) for (omitted) because a (omitted) machine is driven by a tractor.
He said he had undertaken a written test and that he needed so many hours for his licence. He denied ever having done a TAFE course but said he had undertaken a high risk licence test or study in (omitted). He said he had done his mechanical course there. He was unable to say whether he had notified Centrelink about his (omitted) licence in any way. He said he had not been on a (omitted) for a long time, a remark which sits somewhat uneasily with the fact that he was tested to obtain one in 2010. The applicant said that he knew what a white card is and had one.
He said he got it a few years ago but had no idea when. Indeed, he used the phrase “no idea” repeatedly throughout his evidence. He said the white card was for an ex business which enabled him to take employees onto job sites. He said that he had studied health and safety but had no idea what it was for. He said he was not working when he was taking workers onsite (a remark that speaks for itself). He confirmed that he had not informed Centrelink or his treating doctors that he had the white card nor had he told them he was taking workers onsite.
He was cross-examined about his hunting activities. He said that hunting lasted a couple of hours or it could be a day or a couple of days. He said he sometimes camped when he hunted. He said his hunting all took place within some 15 miles of the family home in a State Park. In this context, he was asked when his disability pension started and he said this was after Work Cover and possibly about 10 years ago. He was taken to photographs taken in 2004 (part of exhibit AM18A). He was unable to say what weight the various deer shown in the photographs were.
He said they might be medium. He conceded he might possibly have shot some of them. He said that hunting is not done at night with a spotlight but that you drive around in the day to shoot them. He said he had no dogs of his own but dogs were used by the group and that the dog shown in the photograph was one of his father’s. He professed to having no idea whatever as to the average weight of the sort of deer he has been hunting for such a long time. He said that dogs are released and chase deer and in effect, animals are only shot if they happen to come close enough to the road. Nonetheless, it is clear from the photographs and from the materials filed as a whole that on occasion, hunting is done on foot and involves animals being shot off road as would only make sense. From the photographs themselves, it is apparent some of these animals are very big.
The husband says that he shoots rabbits and foxes at his parents’ home but denied being a primary producer. In response to a question from the bench about a photograph apparently showing him dressing a dead animal, he conceded that that might well be what he was doing.
The husband was cross-examined at great length about documents relating to the conduct of the business conducted at his parent’s farm. The gravamen of what was put to him was that those documents showed that he was the (occupation omitted) and extremely actively involved in the farm’s business.
The gravamen of the response was that this was not the case and he merely gave his father, who is not functionally literate in English, assistance with documentation. In relation to receipts from (omitted) Pty Ltd & (omitted) (part of exhibit AM23) who are clearly agribusiness suppliers, he said that he did not buy from (omitted) Pty Ltd & (omitted), he just signed for the receipt of materials and he just picked them up or that they could be delivered. In relation to exhibit AM22 being records of spraying done upon the farm, the husband said he put figures into the computer to get output and simply filled out forms for (omitted) (to whom the husband’s parents’ (omitted) are sold) from year to year.
When confronted by exhibit AM11 which is a letter to him from somebody whose job it was to conduct (omitted) audits for (omitted), he said that there was no requirement on him to conduct an audit with Mr P. He said he just had to fill out the book work. That surprising assertion flies highly against the terms of the letter itself. In response to questions about exhibit AM12 which are records of the number of (omitted) forwarded to (omitted), the husband professed to not know what the (omitted) were sold for. The husband was cross-examined as to his participation in his parents’ contracting business and inter alia denied knowing how often the business conducted (omitted) work.
This was so notwithstanding the fact that he conceded that he does quotes for that sort of work, (even though he does not conduct the work himself). To repeat once again, the husband’s position was that he had always conducted the paperwork for the family business, but that was the extent of his involvement.
The cross-examination then moved on to financial matters. The husband said he contributed $75,000 at the start of the relationship. He had been working for some years and also had been living at home. He said he had been an apprentice (omitted) since he left school, having finished year 12.
He initially said he put his money into the bank. He said he gave the wife $35,000. Following some equivocation, he said this was when X was born in 2008. He went on to say that he had been saving over the years and had put his money under the mattress (this was an immediate contradiction to his statement shortly before that he kept the money in the bank). He said that the money was used to buy baby furnishings. He asserted that he had contributed $135 per week to the parties’ mortgage on Property P (“the Property P property”) to which I shall return, notwithstanding his relatively low payments from Centrelink. The husband stuck to his affidavit evidence that his parents had paid $24,000 of the wife’s credit cards. He conceded he had access to that credit card and bought things for hunting with it.
He conceded that he had bought fuel on that credit card but asserted that the wife had been reimbursed by his parents. He said he had no idea whether he bought things for the farm on the wife’s credit cards. He said that the wife had been reimbursed for the cost of collars for various dogs. I would interpolate and say that the history about what the dogs cost and who made money from the sale of the puppies and the like, was expanded upon at not inconsiderable length by both of the parties. It is one example of the minutiae to which the parties felt it appropriate to condescend and which is wholly irrelevant in the scheme of things bearing in mind that we are not now essentially concerned with the parties’ use of their moneys from day to day but the position they presently find themselves in.
The husband said that the wife was the person who had bought a spotlight for the four-wheel drive, and of all his numerous unconvincing answers this was probably the most ridiculous. His demeanour when giving it was, like his demeanour throughout his evidence, extremely unconvincing. When cross-examined about the family report, the husband said he had not read it word for word. This was a surprising position bearing in mind that he might reasonably have been expected to have some interest in its contents.
The husband was confronted with a text message from the wife on 7 August 2013 in which she raised a query as to how X had cut her lip. He said that nothing had happened. He forwarded this message to his solicitor. The solicitor ultimately responded for him.
The husband was cross-examined about his payment to his parents of $98,421.12 from his WorkCover settlement payment. It is common cause that this settlement sum was received in July 2005, and the figure that was paid to his parents was the sum remaining after his lawyers had taken out their legal fees.
He denied that the agreement ostensibly dated 3 August 2002 between himself and his parents (and as it transpired witnessed by his sister-in-law) was a forgery after the event. He denied telling his wife that his WorkCover settlement was in a term deposit account. He stuck to his affidavit assertion that the 2002 agreement was, so to speak, genuine, and that the repayment to his parents was genuine. Indeed, he asserted that his parents had spent substantially more than $98,000 on his behalf. He said that the receipts were at the former matrimonial home and unavailable to him. He asserted that the wife had known about his parents paying his bills. He went on to say that the 2002 agreement was executed at his family home and had been prepared on his brother’s home computer by a sister who lived in Melbourne.
When pressed, he conceded that the witness to the 2002 agreement, Ms T, was in fact his brother’s wife. He said he had no idea how long Ms T had been going out with his brother before she married him in 2007. He said he had no idea whether they had been childhood sweethearts. That is another ridiculous assertion given the close family relationships to which I have referred on both sides of this dispute. Even if he did not remember the dates, the husband would surely have known the nature of the relationship between his brother and the brother’s wife.
Cross-examination then moved to the payments made for the matrimonial home in Property S. The applicant did concede that the wife was working at the time the property was bought but asserted that he was paying $135 a week to her, notwithstanding that his Centrelink payments, for example in 2008-2009 were of the order of $100 per week. It should be noted in passing that the figures for Centrelink which the husband seemed to confirm had been roughly the same since 2004 do not fit together very well with the alleged $350 per week he says he receives in a disability pension, nor the $250 per week that he pays as board to his parents.
The husband was further challenged as to the $35,000 he allegedly kept until X was born. It was put to him that if it had existed, it would have been paid towards the mortgage, but the husband replied there were difficulties with paying out the (omitted) Bank loan in advance. I find that explanation entirely unconvincing. The husband asserted that in fact the wife did not spend the $35,000 on baby goods and simply used the money on bills.
When pressed as to the amounts of his disability pension, the husband asserted that he had no idea what he received but that there was not much left over after he had paid his board. He said he paid his parents in cash. I find it wholly unbelievable that a man who has engaged in such a comprehensive struggle over a property division would not be sufficiently oriented to his own circumstances to know how much he receives in statutory benefits which are his only income.
The husband was taken to exhibit AM40AA which purports to show him working. In re-examination he said that this was in fact part of the conduct of a (omitted) business which was the wife’s business. It was started before separation and after X was born. He said that exhibit AM40AA was not (business omitted) but simply a demonstration at (location omitted) which the wife had wanted for advertising purposes. He denied driving a (omitted) for work and denied driving around the farm. The husband’s further evidence under re-examination was not, in my view, of any great moment. He deposed to more detail about his hunting activities, which he said had been somewhat restricted since his injury. When taken to exhibit AM23 he said that he had signed for goods delivered to his parents because he was unable to lift items. When he collected items they would load up for you and his father unloaded.
The husband said that (business omitted) is a (business omitted) to which his parents sell their (product omitted) and he said that the audit by Mr P was to do with spray diaries provided by (business omitted).
The Evidence of Ms F
Ms F is 56 years old having been born in 1957 and despite arriving in Australia in 1969 her English is poor. She cannot read or write in English and had only limited primary education in (country omitted).
Under cross-examination she was taken to the alleged 2002 agreement. She said that she had authorised her son to prepare the agreement on the computer and was with her son Mr Middleton when he executed it. She said it was something she remembered clearly and it was done at the home. She said that she used to give the husband authorisation to transfer money from her own account and give him the number with which to transfer to his account.
Ms F said that before his injury the husband had not come all that often to the family farm, maybe once per week. He had, however, brought his daughter to the farm on frequent occasions, maybe three times per week, and Ms F had looked after the child. Ms F confirmed that the husband used the computer at the farm for the farm’s business. She confirmed that she and her husband owned two properties, one in (omitted) and the other at (omitted) near (omitted).
She did not know how many cattle she and her husband owned, but she was clear that none of their children owned any cattle. She confirmed that the (omitted) property of 47 acres was bought in 1972 and the (omitted) of 312 acres in 2004. She was cross-examined about prior activity and the production of (omitted). She said that she and her husband had ceased (omitted) production in 2001 (the licences stopped in 2006) because they did not want it.
When cross-examined about (company omitted), Ms F’s evidence was unsatisfactory. She said that she did nothing. She said she did not know it advertised. She professed to be unaware that the husband does anything for the contracting business and professed not to know whether (company omitted) makes any income.
She also said she knew nothing about the (omitted) business and this was conducted entirely by her husband.
Ms F continued to deny vigorously that the husband did any work in respect of the family’s business whether in (omitted) or otherwise.
I should say that although it is clear that Ms F had some difficulty with giving her evidence through an interpreter, nonetheless her professed degree of ignorance about the operations of the family business was very unconvincing.
Ms F said that she had paid the husband’s medical expenses. She said every time she took him to a medical appointment, she paid in cash. She said she was quite unable to remember how much the husband had spent on medical bills.
She said that she and her husband had taken the husband to medical appointments in Melbourne and (omitted), the majority of which were to see a specialist in Melbourne. She did not know what sort of a specialist.
Ms F said she and her husband lent the parties $15,000 in 2009 following a request from her son. She said she gave the son permission to transfer funds on the computer and that she wanted the money repaid. She said there was not a fixed date for repayment but that she had said “as soon as you have it, I want it back”. She said that her husband and daughter were there at the time. She said she did not speak to the respondent wife about this and understood that the applicant husband had told her.
The Evidence of Mr F
Mr F gave his evidence through an interpreter also. He is 66 years old, having come to Australia in 1967. He had only limited primary school education in (country omitted). He confirmed the contents of his affidavit as true and correct.
Under cross-examination, Mr F asserted that the husband does no physical work on the farm but helps him to sign documents. He said that his son had done this since he first went to school. He said that this had not changed after his son’s accident. The son continued to help him with some documents he did not understand.
He started contracting in 2004. He said the husband was not involved in the purchase and sale of cattle. He said that so far as the spray diaries were concerned, he would write things down in (language omitted) and then whichever of his children turned up would fill in the documents in English. He said the husband did this more often than others because he was at home.
Mr F said he was qualified to use chemicals and had been doing so since 1969 and had a licence since about 15 years ago. All his (omitted) go to (business omitted) and are transported by (business omitted) themselves. He was cross-examined about the value of the (omitted) (one of the many rather irrelevant considerations touched on in cross-examination) and said that he obtains labour for the harvest. He confirmed that the son pays $250 a week but does not actually pay rent.
He was cross-examined about (omitted) production and said he stopped in 2001. He said he had sold his quota and finished.
He said he had been selling to (business omitted) since he started producing (omitted). He said that the husband did not sign documents as a (position omitted) and professed not to know that the husband described himself as a (position omitted). He said the husband signs (omitted) contracts for him but that the responsibility for prices was his own. He said the husband has nothing to do with the purchase and sale of cattle and went so far as to say sarcastically that the husband does not even know how many legs the cows have.
The documentation in relation to dealing with cattle shows that the husband does have an involvement with it and I should make it clear that the evidence of Mr F was, in a general way, given in an unconvincing fashion.
The cross-examination concluded with the issue of the settlement in 2005 whereby the husband paid $98,000 to his parents. He said he was there and signed the document at the time. He said it was executed at his own home.
Mr F was later recalled to give further evidence. He said the husband had signed documents when he was not there but he, Mr F was in charge of finding contractors. He said he could run the business with his children but that Mr Middleton (“Mr Middleton”) spent most time there and, for this reason, he was authorised to sign documents. He repeated his assertion that the wife knew that money had to be repaid and the same for the $15,000. He said this $15,000 was advanced and that he and his wife hoped one day to get their money repaid.
Section 135 Evidence Act Ruling
I was obliged to rule in a rather summary way on an application brought by counsel for the wife to reopen cross-examination to deal with matters arising from a decision of the Administrative Appeals Tribunal of Australia in X v Australian Taxation Office (No.2) (citation redacted). On the previous day, counsel had cross-examined all three of the husband’s witnesses about the cessation of their activities as tobacco producers to an extent that I had found prolix at the time on what was after all only capable of being a credit matter. It is fair to say that all three witnesses and, X in particular, had portrayed their cessation of tobacco growing essentially as a matter of choice owing to unprofitable markets.
The decision would appear to show that X lost his tobacco licence for what might be described as misconduct.
Counsel for the husband sought to exclude reference to this decision by relying upon s.91 of the Evidence Act but as I pointed out s.92 might be thought to give rise to an exception, although on considering the matter further now I am no longer so sure that that is the case.
Section 135 of the Evidence Act gives the Court a general discretion to exclude evidence which relevantly reads:
“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.”
It was immediately apparent to me in the face of the hundreds of pages of materials that the parties had already filed, that an excursus into the X tobacco growing history would be likely to take a considerable period of time. It was clear that there was going to be argument about what X had actually said. I formed the view, amply justified as things have transpired, that any additional evidence about the tobacco growing activities of the X family would not greatly, if at all, assist me in resolving the credit issue with which I was confronted.
For these reasons, I declined to admit the material into evidence.
The Evidence of the Respondent Wife
The wife adopted all her affidavits as being true and correct. She did not otherwise lead evidence-in-chief.
Under cross-examination, the wife said that she believed the husband married her for her money. The amount concerned was approximately $8,000 at the time the parties married. She said that she now believed he married her for this.
She described the husband as a liar and said he had been violent to her and to the children. She said he had been deceitful to Centrelink, WorkCover and her. She said he was lying when he says he cannot work.
She asserted that the husband is possibly a part-owner of the family farm and that she had only become aware in full of all these matters relatively recently. She had been largely out at work during the weekdays during the marriage and on the weekends the husband went hunting.
She said she had had no idea what the husband put on the various forms that have now been revealed and that he hid things from her. She said that he never asked her to attend Court or doctors. She said she knew that the husband had a claim against his employer for a WorkCover injury and did not know that it was unjustified nor that he was in fact fit. She said the husband was very rarely around her home but was always at his parent’s property.
She said that the husband had told her he could still hunt and she could not understand how he could hunt but not work. She only found in the last 15 months that the husband was malingering.
When cross-examined about the husband’s receipt of the disability pension the wife’s evidence was in my view palpably self-exculpatory and unsatisfactory. She said at one and the same time that she knew he had applied for the disability pension but presumed he was fit. She said he would say one thing to her and something else to others. She confirmed that she had been in receipt of the carer’s pension for about five years. She said she had told the truth to Centrelink because the husband did need caring for.
She said the husband had been violent and angry over many years, starting about two months after the marriage and continuing throughout the relationship. When taxed with the fact that she had children with the husband after quite some years of marriage, she said that she was hoping one day he would change and that things would get better. She was taxed with the fact that there were no specific allegations of violence in her affidavits, but denied that this was the case.
She said the husband had been violent and abusive between the marriage in 1999 and 2005. She said following an incident at the (omitted), she left the husband in November 2005 and went home to her parents for three to four weeks. The husband and his parents visited her family home and Mr F was extremely apologetic and the husband also. They both promised that she would not be assaulted again. It was only some three or so weeks later that the wife decided to return to Property S and thereafter the husband stopped hitting her. Nonetheless, he remained abusive both emotionally, financially and verbally.
The wife said the husband continuously told her to pay for the household and the mortgage and that it was her duty to pay the mortgage and utilities and every household expense.
She said she tried to discuss these matters with the husband, but on each occasion she sought to do so there was always an argument.
The wife confirmed that she had been going out with the husband for two years before marriage and that she would not have married him if she did not think he was a good person. Similarly, when she went back in 2005, she thought that the husband would change. She said that the husband was physically abusive and verbally so from time to time but was, at times, kind and loving.
She said the husband loves his children, they loved him. How he behaved depended on which side of the bed he got out of. On some days he was normal and on other days horrible. She denied having a very negative view of the husband (something it is hard to be believed given the tenor of her evidence generally).
She confirmed that she had taken very substantial security measures at her present home to reassure herself as to the safety not only of herself but her children.
The wife confirmed that she had tried to suspend the husband’s time with the children after the incident with X. X had told her, in August 2013, that the husband had punched her four times to the face.
The wife said that the husband’s aggression was directed at her and not as often in front of the children. She said what she really wanted was for the father to spend limited time with his children. She said it was difficult when you have got a daughter who has got a cut lip and you do not know what has happened. She confirmed that she believed that the husband had hit X and will do so again.
She confirmed that she will always be on tenterhooks and will always be protective about her children. She said she understands that children often fall and can injure themselves but confirmed that she believes the husband has hit X. She said that X told her in June 2013 that her father was hitting her and confirmed that she would always be scared that he would do so again.
She confirmed that Y is in the process of being weaned and now takes solid food also. She also confirmed that Y has not had overnight contact with the father.
The mother said that the father could injure the children in one hour or in 24. She denied that the father should spend no time at all with the children because this would be unfair to them.
The wife was cross-examined in some detail about the incident of X’s cut lip. She took X to the doctor and when she asked her what had happened to her lip, the child said that her father had hit her four times. She said it was clear there was a cut lip from the time of changeover at the police station.
The wife was cross-examined about her application for sole parental responsibility. She said it had been very difficult in the last 15 to 16 months to get any decisions made about the children. The husband either does not reply or sticks to what he wants. She said that she had, in the end, given in as to the husband’s choice with (omitted) School as a school following a lengthy period of indecision from the husband. In fact, she thought (omitted) School would have been a better school but had given in.
The wife was further cross-examined about X’s disclosure. The wife confirmed that she had felt completely disempowered by the section 11F conference in August 2013 and the proposal she had put as to time did not reflect her true wishes. It rather reflected her feelings that there was simply nothing she could do.
The cross-examination then moved to financial issues and the wife was taken in great detail through her assertions as to her income. I do not propose to set the figures out in the same detail that counsel felt it appropriate to elucidate. What was being put to her was that in light of even the most beneficent version of her earnings she could not have paid all the bills as she said.
It is however, noteworthy that at the time of separation the wife had over $22,000 of savings in the bank. She impressed me as being a woman very closely oriented to her financial interests with a very good grasp of how to save and make money.
The wife stuck to her story that the husband had told her that he had paid the $15,000 deposit on the Property P property. She disagreed that these funds were from his parents.
One other area of evidence about property matters that I should record is that the wife denied that she alone had access to the safe in which jewellery was kept. She said that the husband had had access in June 2012 to the safe. She said both had their own combination for the safe and that it was open when she returned home on 27 June 2012. I should note in passing that I accept that evidence which was given with conviction.
The wife stuck to her account of the husband’s revelations of his dishonesty despite being strongly pressed. She said that the husband told her this on the 31st of May 2012 about how the farm operated and that money was being paid to him from his mother’s account. She confirmed that a lot of expenses were put on her credit card by the husband.
The wife also confirmed (as it is set out in her affidavit) that she had been hunting with the husband. She said she had seen the hunters running through the bush. She said she did not know if the husband’s injuries were real. She did however confirm that she had been hunting with the husband during the periods that she was caring for him.
During further cross-examination on 17 October 2013, the wife confirmed that she and the husband had had difficulties conceiving. They had been to (omitted) to an alternative medicine therapist for assistance in this regard.
The wife confirmed that she had applied for an Intervention Order upon separation as a result of fear of the husband.
She confirmed that she had redrawn $20,000 just before separation and put it in bank accounts for the two girls. She said it was her money in any event.
She confirmed that she had not continued payments on the mortgage of the Property P property since July 2012.
She said she had paid about $20,000 in legal expenses from her savings account.
In re-examination the wife repeated that she had no knowledge of the husband’s WorkCover and Centrelink claims although she knew he received compensation payments and Centrelink. She said the parties had separate bank accounts and neither knew what the other had. She confirmed that the husband had told her that he had received $130,000 in WorkCover payment less legal fees. She said that she had been told by the husband that those funds were in an interest-bearing account to enable the purchase of the Property P property. She said she would ask questions but most of the time she would not get an answer. If she pressed it always led to arguments and they would start to yell and argue.
She said she had no knowledge of the husband’s activities on the farm although she knew he went there daily if he was not off hunting. She would ask what the husband did at the farm but would get one word answers such as, “heaps” and “stuff”. She said the husband would get agitated and defensive on these occasions. The 31st of May 2012 conversation was the only time he revealed what was going on.
The evidence of Ms L.
Ms L is the sister of the wife. She confirmed that they are a closely knit family. She confirmed that she was aware the husband was injured in 2002. She said her account in her affidavit of what she saw at the (omitted) was true. Although counsel in cross-examination tried to suggest to her that this affidavit was produced by collusion with her sister, I should make it clear that Ms L was an excellent witness who stuck by her story in the most believable way.
It is clear from Ms L’s evidence that the husband did indeed assault the wife on this occasion as alleged in Ms L’s affidavit.
The Evidence of Mr L
Mr L is the father of the wife. He adopted his affidavit as true and correct. Under cross-examination, he confirmed that both his family and the Middletons are closely knit families both of (omitted) origin. He said that whenever he visited the husband was never home. He would go hunting on Friday afternoons.
He confirmed he was not present at the (omitted) in 2005. He confirmed that the wife had agreed to return to Property S following apologies and a guarantee that this would never happen again.
The Evidence of Dr A
Dr A is a GP of some 35 years experience. He gave evidence about the husband’s back condition, although it should be noted that for all his experience Dr A is not a specialist neurosurgeon or orthopaedic surgeon. It was clear that in regard to the more technical aspects of the husband’s condition he relied upon the specialists whose reports he had seen. He confirmed however, that the husband continues to attend him regularly and that his symptoms are consistent with his claimed injury. His condition waxes and wanes which is normal for this condition and the husband is placed on antidepressants and drugs for his pain. The painkillers he is on are towards the top of the range.
Although counsel sought to challenge the extent of the husband’s condition in cross-examination, Dr A was not moved and stuck to the position that the husband was incapable of physical farm work.
The Evidence of Dr L
Dr L is the general practitioner to whom X was taken with a cut lip. He has been a general practitioner for some 30 years.
He deposed that on the 5th of August 2013 the wife and X came to his surgery in the morning. He said the wife claimed that the father had hit X who had a mild laceration to her right lower lip and some swelling. He said he asked the child what happened and that the child replied that the father had hit her four times.
He confirmed that he deals with clients who suffer from anxiety and that the wife’s anxiety was moderate at this stage. He confirmed that the letter he had written exhibited by the wife’s affidavit material was true.
Under cross-examination Dr L said he was sufficiently trained in paediatrics. He was aware of the concept of confabulation and conceded that there were always two sides to every story. He said the wife was present throughout the entirety of the interview with X.
In re-examination Dr L confirmed that he had reported the alleged assault to the Department of Human Services (“DHS”) as he was required to and that it was his understanding that they closed the case in August 2013.
Observations about the Credit of some of the Parties
The applicant husband was, as his counsel effectively conceded in final submissions, a terrible witness. His answers and demeanour were often extremely unconvincing. He asserted on a number of occasions that he had no idea about matters that would reasonably have been expected to be within his memory even allowing for any difficulties that might arise from his painkilling regime, assuming that that were in some way to affect his memory. He certainly did not make that claim.
The husband’s parents’ demeanour was little better. It is clear that they are a closely knit family and they were all too obviously eager to assist their son. Mr F in particular impressed me as being a witness who was prepared to say whatever he thought might suit the moment. His sarcastic remark to the effect that his son would not even know how many legs the cows have, while it may have struck him as humorous, struck me as being absurd.
The wife was also at times an unsatisfactory witness. I have already referred to some aspects of her evidence which I found unconvincing and most particularly her endeavours at one and the same time to say that the husband has always lied about his medical condition while trying to explain the fact that she has received the carer’s pension and was aware that the husband was on Centrelink payments.
Nonetheless, in the main the wife’s evidence was generally given with conviction. Although she is plainly utterly wrong in some respects such as for example, the assertion that the husband married her to get his hands upon her $8000, and while it is clear that she is very money oriented and indeed very good with money, she was in the main a witness of truth.
The Evidence of Mr T
Mr T was called and he adopted his Family Report prepared in April 2013. He had read Ms O’s section 11F report but did not change his own views notwithstanding. He said that Ms O’s report showed striking elements of confabulation, this being a condition that most commonly applies to children between the ages of three and five years.
He said that confabulation usually arises with children who are triangulated into parental conflict. The children give answers that fit the expectations of the other parent. In the case of an injury, intense questioning is likely to lead to confabulation and the story gets more and more florid. He said that the substantial number of DHS notifications in this case supported the proposition that confabulation had occurred. Reinterviewing only reinforces the narrative of the child. Both parents become hyper-vigilant.
Mr T said he had concerns about the ongoing conflict between the parents. They are a high conflict couple and they have been worse since July 2013. He said they needed carefully tailored arrangements and should undertake a parenting orders program. He said both parties required counselling and the children required social structures, like school and kindergarten.
Mr T pointed out that the couple had only been separated for 12 months and the youngest child was only nine months at the date of separation. He pointed out that two to five years is a normal period for adjustment following separation and that here it was too early to say whether the parties were stuck, but it was clear they are both struggling.
Under cross-examination by counsel for the husband, Mr T was clear that a full change of residency was contraindicated. X had just ended the attachment process and the two year old was being weaned. He said it would be an over-reach to change residence.
Findings about the Facts
The parties were very young when they married. The wife was 21 and the husband was 23. According to the wife, they had known each other for two years before that. They were clearly very young in years.
At the start of the relationship the wife had approximately $8,000. Whether this was in savings or whether she was given some of it by her parents is neither here nor there. The dispute about this trivial aspect of the matter was typical of the over-elaboration of the way the case was run.
Whether or not the wife had what she describes as a glory box and whether she had $1,000 given by her grandmother and similar sundry items as asserted in her affidavit is once again, in my view, neither here nor there. The wife’s car alleged by her to have considerable value at the time of the marriage is long gone and of no moment.
On any view, the wife’s possessions at the time of the marriage were relatively limited. She appears to have been the owner of a certain amount of jewellery and I will deal with that separately.
The husband’s contribution at the start of the relationship is more difficult. He says he had savings of some of $65,000 and it is clear from exhibit A2 that the wife must have instructed Ms E in August of 2012 that the matrimonial home at Property S was bought with, inter alia, $68,000 “from your client’s savings, some of which he had accrued prior to the marriage, and some during the marriage”.
The wife sought to resile from this concession made on instructions by her then solicitor. The wife’s position is that the husband could never have saved anything like that amount of money, bearing in mind that at the time the marriage took place the husband was an apprentice (omitted).
That proposition is in my view entirely sound. Even assuming the husband was living with his parents and paying nothing whatever in food and board, he could scarcely have saved an enormous amount of money like that on an apprentice’s wage.
There is, however, another way of looking at the matter. It is possible that the husband was receiving what, in effect, were dividends or rewards from his participation in the family farm. That might quite readily go to support a sum of that order.
In my view it is more probable than otherwise that the solicitor’s letter from Ms E accurately represents the true position. However unwelcome it may now be, it is in effect a concession against interest. There has never been any formal retraction or withdrawal of it.
This finding, of course, damages both sides’ credit. On the one hand, it denies the wife’s position that the husband had nothing at the start of the relationship. On the other hand, it paints a picture of the husband’s involvement in the Middleton family farm that he has sought earnestly to deny. In my view it is more probable than otherwise that this explains this outcome.
I note that the letter, in any event, refers to only “some savings before marriage”. I think that the husband has vividly exaggerated the amount he had saved at the start of the relationship. It is more probable than otherwise that at least a significant part of the $68,000 referred to had come during the period 1999 to 2001 and I have no doubt that the wife, who worked diligently throughout, also contributed to the purchase of the former matrimonial home.
The matrimonial home was bought on 21 June 2001 for approximately $138,000. A loan for five years was taken out of just over $70,000.
I entirely accept the wife’s evidence that she paid all the mortgage and outgoings in respect of this property. Her evidence about the number of jobs she did, the hours that she worked and her contribution was given with conviction, and I accept it.
That does not mean, however, that I accept all the wife’s evidence in this regard. It is clear that the husband must have made some contribution to the finances of the household from time to time, although it is not in any way possible to say how much. A lot of what the husband’s financial records show is an inter-relationship with his parents’ dealings and, in particular, the bank account of his mother. It is not possible to disaggregate the figures.
It is also clear that the husband was an avid hunter. The wife has deposed to having gone hunting with him and I accept that evidence. I also accept that she did not like it. Nonetheless, the fact that she went means that her present distaste was doubtless not fully communicated at the time.
The relationship was, as I find, characterised by a measure of violence and abuse on the part of the husband. For all his denials there is no going round the all too compelling evidence of the (omitted) incident. This was a significant assault. It was so significant that the wife decamped back to her parents. There is no challenge to the proposition that the husband and his family attended the wife’s parents home thereafter and apologised for what had happened, promised it would never be repeated and, in effect, begged her to return.
Having seen and observe the parties give their evidence over a protracted period of time, I find that the truth about the alleged violence and abuse lies somewhere between the parties’ competing positions. I have no doubt whatever that the husband was, on occasion, angry and abusive in his language. He struck me as being a man well capable of this, although perhaps coextensively, he is also inarticulate and given to non-communication, as the wife asserts.
While the wife must have replied on occasion, the proposition that she gave as good as she got is one that I reject.
There has plainly been some measure of physical violence from time to time but, in my view, the wife has somewhat exaggerated and reconstructed. The fact is that there is not a great deal of hard evidence of physical abuse in all her very extensive affidavit material. The husband’s conduct does not go far enough to constitute a Kennon case.
In 2002 the husband had the misfortune to be injured at work. He proceeded with a WorkCover claim. It should be noted that the WorkCover material shows beyond doubt that WorkCover was prepared to pay the husband’s reasonable out-of-pocket expenses. The material in exhibit AM5 shows that the husband claimed for absolutely everything. There are repeated claims for travel amounts of as little as $2.24 for visiting Dr A in (omitted). I also note that some of the accounts of Dr B of Melbourne, he being a surgeon who had made it clear he would only take a patient such as the husband if all his bills were paid even if they were over-scale, nonetheless themselves show on occasion Dr B’s charges being under scale (see bill (date omitted) $168, scale fee $200 – part of exhibit AM5).
This brings us to the alleged 2002 agreement for the repayment of medical expenses. It is no small thing to assert and prove fraud. Clear and cogent proof is required. It is a matter that attracts the operation of s.140 of the Evidence Act.
Notwithstanding that the daughter-in-law who allegedly witnessed the document was not called, I am satisfied that this document was brought into existence at the date it purports to bear. What is not clear, however, is what on earth the parties thought they were executing it for.
It is clear that the Middleton family conducted their affairs, including matters involving the husband, to the exclusion of the wife. She was never told about the agreement drawn up by, it would appear, the husband’s sister-in-law.
The agreement is difficult to understand. As I find, there would have been few bills that WorkCover and Medicare would not have met. The ultimate payment out to the husband of about $130,000 took place in 2005. This was only shortly after cessation of WorkCover payments in 2004. If there was a shortfall for the husband because he then went onto Centrelink payments it had little time to operate.
The position contended for by the husband and his parents is that the outstanding debt in respect of medical expenses substantially exceeded the amount the parents were paid of some $98,000. I simply do not accept this.
Doing the best one can to disentangle the confused and confusing affairs of the Middleton family, in my opinion the 2002 agreement was drafted as a kind of belt and braces insurance policy.
The husband is, and has always been, heavily interlinked with the operation of the family business, and in my view it is more probable than otherwise that the payment of the WorkCover lump sum to his parents was simply part of his contribution to that business. He kept it secret from the wife and prevaricated and dissembled when she pressed inquiries from time to time.
This is a woman to whom money is important. She would have wanted to know what was happening. Nonetheless, I accept that the position as regards communication between her and the husband was as she puts it. If she asked questions, she got abrupt, nonresponsive replies, and any endeavour to press the matter just led to arguments.
In the ultimate, I accept that the wife did not know about the payment until long after the event, that it was concealed from her, and that the payment to Mr and Ms F was simply part of the ongoing business and interpersonal relationship between them and the husband.
Throughout the period from 2002 until now, the husband has continued to hunt. This brings us to the further sub-issue of the state of his health and his capacity to work.
The Husband’s Capacity to Work
It is not open to me to gainsay the medical opinions in this case. It is clear that the husband suffered a significant back injury and that it is debilitating and painful for him. Nonetheless, this does not mean that it is as bad as he says. The weight of the evidence taken as a whole, including the husband’s terrible performance as a witness, leads inexorably to the conclusion that he is very heavily involved in his parents’ business, as he always has been.
The husband has hunted throughout. His evidence that he, in effect, is not involved in any kind of physical exertion or labour is gainsaid by the photographs. The photographs show him marching through the bush. They show him lifting up the head of a large deer which would be extremely heavy. They show him gralloching one of the animals as he, in effect, conceded.
Furthermore, I have direct evidence of the wife that even after his injury he was involved in physical labour when hunting, and I accept that evidence.
The evidence of the various activities the husband conducts is also, in my view, overwhelming. He was obtaining a (omitted) licence as recently as 2010. He has licences for the conduct of various forms of business activities. The photographs also show him engaging in the (omitted) work, and even if this was a promotional shot, so to speak, it shows him doing work of a sort.
Likewise, the receipts from (omitted) Pty Ltd & (omitted) show him actively involved in the farm business. He is the point of contact for the contracting. The overall picture could not be clearer.
I accept that the husband simply cannot do heavy manual work. The medical evidence is clear. Nonetheless, he can and does do minor manual work consistent with, for example, the extent to which he is able to hunt. He receives chemicals and the like and doubtless lifts the lighter ones around. He is clearly the (position omitted) of the farm, not least because his father is functionally illiterate in English; his mother, completely so.
As I find, the husband is involved in ways it is not possible to describe precisely with the continued operation of his parents’ farm. He spent very substantial amounts of time there from 2002 onwards, and it is far more probable than otherwise that he has been working as I have described. He works for reward. The Middleton family clearly conduct their affairs, at least in respect of the husband, as a kind of partnership. The husband’s endeavours to explain away the press articles showing him doing work on the farm were utterly unconvincing. He has a resource in the form of his interest in the farm and such income as he makes from it.
The Receipt of Statutory Benefits
Quite how the husband has been on Centrelink while his wife was working escapes me. Neither party was at all convincing about their endeavours to self-exculpate in relation to the receipt of benefits. At the very least, the wife closed her eyes and was a little bit blind to the fact that the husband was fitter than she thought was consistent with his receipt of statutory benefits. The husband clearly has received statutory benefits at times when he is gaining income from the family farm.
The Purchase of the Property P
It is clear that the wife, primarily through her own exertions, paid off the property at Property S. I also accept that she has been the primary carer of the children throughout the relationship, although she has obviously been assisted from time to time by her own family and, more particularly, the paternal grandmother.
In November 2004, the parties bought a Honda (omitted) for some $41,000. I accept that the wife discharged the debt on that from time to time.
On 7 May 2009, the parties bought a block of land at Property P for about $150,000. I accept that the $15,000 was paid with moneys loaned from the husband’s parents because the bank records show $15,000 being deposited to him. This is all part of the ongoing interrelationship, in a financial sense, between the husband and his parents.
I do not accept that this was a loan. The parties were in the habit of drawing up loan agreements and the absence of one suggests far more probably than otherwise this was simply part of the warp and woof of the interrelationship they had with their son.
Dealing with the irritating sub-issue of the water tank on the property, it was clear that the wife paid the deposit and the husband’s parents the rest. That tank will stay on the property and will either improve its sale price or not as the case may be.
I accept that the wife paid $270 per week until 20 July 2012 in respect of the mortgage at Property P, and which she ceased thereafter.
The Parties’ Legal and Equitable Interests
The property of the parties consists of:
·Property S property, $244,000
·Land at Property P, price uncertain but to be ascertained by sale (wife desires to keep it)
·Wife’s car, unvalued, conceded by the wife as $13,000
·Husband’s ute, unvalued; the wife asserts $30,000
The liabilities are:
·Mortgage on Property P property, $133,375
Superannuation:
·Wife, $66,306
·Husband, $9,245.
I have left out the matters of the tools taken by the husband (about which there was no cross-examination) and the jewellery. I am unable to say exactly what matters were removed by the husband or what value they should be ascribed. I am likewise unable to say who has got what of the relatively extensive amounts of jewellery the parties say they formerly possessed. Despite all the welter of evidence in this case, there is insufficient evidence for me to make any positive findings as to those matters.
Likewise, the state of the evidence does not enable me to make conclusive findings about the value of the parties’ motor vehicles. They will each simply retain their own.
Section 79 (2) – is it Appropriate to Make an Order?
This is a matter that can be dealt with briefly. This is one of the very many marriages in which it is self-evidently appropriate that there be an adjustment of the parties’ property interests. The parties have conducted their affairs as a married couple. They are not now married. It is plainly just and equitable to contemplate making an order to vary their interests. They are joint owners of property, and that obviously cannot continue in any event.
The Claimed Add-back of the $98,000
Add-backs will need to be approached with some caution, given the decision of the full court of the Family Court of Australian in Bevan & Bevan [2013] FamCAFC 116. In that matter, Bryant, CJ and Thackray J said, at [79]:
“We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s.79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(O) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.”
In a separate, not dissenting, judgment, Finn J said, at [160]:
“These reminders that the jurisdiction under s 79 is a jurisdiction to alter individual interests in title to property and that there is no community of property in this country, might also call into some question the current practices in relation to the treatment of property which is no longer in existence but which one party has had the use of (the so called “addbacks”), and perhaps also of the unsecured liabilities of one or both parties. It may well be that these matters should more strictly be considered in making findings under s 79(4)(e) (i.e. s 75(2)), or in an extreme case, when considering the question under s 79(2) as to whether it is just and equitable to make any order under s 79. But these questions do not arise in the present case, and are thus for another day.”
Bevan v Bevan therefore does clearly cast considerable doubt on this notion of add-backs, but equally, it is not a definitive statement that add-backs do not exist.
In the context of the circumstances of this case, it is not appropriate to treat the $98,000 as an add-back. The funds have been gone since 2005. They were doubtless being applied by the Middleton family to their own general interest.
Furthermore, the origin of the funds cannot be entirely overlooked. It was a personal injury payment in effect to the husband alone as a result of the injury and pain that he had suffered.
The proper way to deal with the husband’s abstraction that this payment constitutes, in my view, is as indicated by the Full Court in Bevan, to take it into account in making a set of orders that are just and equitable, and also to give it express consideration in terms of s.75(2)(o) of the Family Law Act 1975 (Cth) (“Family Law Act”).
Contribution Issues
For all the wife’s reservations about the husband, the fact is that the relationship had something going for it. They would not have gone to (omitted) to seek fertility treatment, nor would they have had children as recently as two years ago if everything had always been utterly dreadful.
Given that I accept the wife’s evidence about the amount of work she has done, and given that the work the husband did was really entirely (or at least almost entirely) for his parents’ business, and given that the wife was the primary carer of the children, it is clear that her contributions have been greater than those of the husband.
Nonetheless, the husband worked until 2002. He put in the vast bulk of the purchase price of Property S property, although the wife in fact then paid off the mortgage in a rather greater amount. The wife clearly put in a lot more money in terms of mortgage repayments to Property P property.
While the wife did abstract some $22,000 on separation additional to the $22,000 she had herself saved, taken overall, it is clear, in my view, that the wife’s financial contribution was far the greater. In all the circumstances there should, in my view, be a 10 per cent loading in the wife’s favour in this regard.
The Section 75 (2) Factors – Future Needs
The husband unfortunately is in poor health. He has to take heavy duty painkillers and he certainly will not be able to do any significant manual labouring ever again. He seems unlikely to be ever able to work as a (omitted), the trade in which he is qualified, although his qualification as a (omitted) might make one wonder whether that is necessarily wholly the case.
Notwithstanding this, however, he has a secure future in his parents’ business, of which I have no doubt he will continue to remain the (position omitted). In describing him as (position omitted), I would accept that it is his father who ultimately calls the shots. Mr F impressed me as very much the patriarch. Notwithstanding that Mr F’s will, which I would say struck me as being formidable, will dictate the global course of events for the business, so to speak, the fact is that the husband has a very active and productive role in this business. In addition to his disability pension, he will get further payments, which I have no doubt will continue to be undisclosed to the competent authorities, and will be able to reconstitute his life.
I note, in passing, that the figure of some $250 paid for board is a high figure, given that there is, in truth, no need for rent. This arrangement has all the appearance of being sustained for the purposes of this proceeding.
The wife’s position is more complex. Her future employment will continue, but on any view, will not be overly munificent. She will have the primary care of these two young children for many years to come.
I also take into consideration in this regard the alienation by the husband of the $98,000. This is, in my view, a fact or circumstance which the justice of the case requires to be taken into account.
In all the circumstances, there should be a further 20 per cent adjustment in the wife’s favour in this regard.
A Just and Equitable Outcome
The parties have but little property now, notwithstanding their earnest endeavours over time. They have real property worth approximately $400,000, with mortgages of about $133,000. There has never been more, in real terms, than some $270,000 worth of real property to divide.
The parties’ superannuation has not been the subject of any detailed set of submissions, but in circumstances such as these where the parties clearly conducted their finances in totally disparate ways, I think in the most unusual circumstances that it is appropriate that each party simply retain what they possess.
It should be noted that this leaves the wife much better off in terms of superannuation, but, while there is no evidence as to the long-term likely inheritances that either party will receive beyond, perhaps, normal expectations (given that these are close-knit families), in the husband’s case, I am positively satisfied that he will have the very considerable resources of the assistance of his parents in the business into the foreseeable future. In my view, an outcome that gives the wife 80 per cent of the property pool is appropriate.
I note that the wife desires to retain both properties and to retain all the debt. The parties will need to confer to see if this is a practical outcome and to produce orders accordingly.
Children’s Issues
In the unusual circumstances of this case, this aspect of the dispute can be dealt with quite briefly.
The mother’s position at the commencement of the case was one in which the father would receive fairly substantial amounts of overnight time with the children. As I have explained earlier, this arose out of her sense of despair following the section 11F conference and the subsequent resumption of time with the father.
In fact, the mother’s initial position is essentially consistent with the orders made on 5 December 2012, and reconfirmed in August 2013. With the exception of the glitch caused by the alleged assault on X. Those orders have been adhered to without notable incident. The extant orders are also essentially supported by Mr T.
As modified during the course of the evidence, it is clear that the mother would like the father to have extremely limited time with the children, notwithstanding her concession that the children love him.
This position arises out of the mother’s subsisting and, at this stage, almost insuperable, fear that the father will at some point lose his self-control and hit the children.
It should be noted that I do not accept for one moment that the father struck X four times in August 2013, or indeed otherwise at all. I entirely accept Mr T’s evidence that this is an episode of confabulation, caused by the mother’s over-intense fears and the responses arising from that.
The father is a loving father and there is no reason to presuppose that the children are at risk of physical assault with him.
In addition to the counselling the mother is undergoing to deal with violence experienced at the father’s hands, she should undergo not only a parenting orders program, as Mr T recommended, but also counselling to enable her to come to grips with her irrational fears of violence on the father’s part towards the children. Her application to substantially diminish the father’s time is not made out.
In my view, the father’s countervailing application that the children live predominantly with him should also be denied. Mr T’s expert evidence was entirely convincing.
Sole Parental Responsibility
The mother seeks sole parental responsibility essentially because she finds it very difficult to communicate with the father. The father seeks joint parental responsibility.
This is a case in which there has been family violence, but in my view, it is in the best interests of the children that there be an order for joint parental responsibility. The fact is that if I make the order the mother seeks, her views about the father will lead her to excise him from all decision making in the matter.
Once this case is over, it is reasonable to suppose that the parties will settle down, and that their communication may become, absent the stress of the proceeding, somewhat improved.
The father has sought to play an active role in matters such as the children’s education, and in my view, it will be in the children’s best interests if both their parents are involved.
The statutory pathway
Neither side seeks an order for equal time, and it is clearly both impracticable, in view of the children’s very young age, and generally inappropriate, given the poor communications between the parents.
The orders proposed by Mr T provide for a sensible regime of time which would amount (which fully implemented over time) to substantial and significant time within the meaning of the Family Law Act 1975.
In my view, orders should be made in those terms.
It will be noted that I have not traversed, in terms, s.60CC(2) and (3) of the Family Law Act 1975, although I have of course had regard to them. It is not necessary in the circumstances of this case to deal with them seriatim. The extant regime is recommended by Mr T and the attempts by each party to alter it radically have been rejected. It is clear that Mr T’s recommendations are those that will promote the best interests of the children.
Conclusion
The parties have expended an enormous amount of time and energy and money on this case. That reflects the intensity of the emotions, and the unfortunate failure of their legal advisors to be able to assist them to deal with the matter in a more circumscribed and less expensive way.
It seems to me more probable than otherwise that both sides will have consumed an enormous amount of whatever they receive by way of a final reward in legal costs. The position in relation to children was, in my view, readily foreseeable. The position in relation to property in the face of the materials as a whole was also relatively readily perceivable.
It is most unfortunate that the parties have spent so much time to so little avail.
As earlier indicated, I will give the parties an opportunity to study these reasons and will hear from them as to the final orders to be made. In terms of parenting orders this will be simple (see paragraphs 201-203), but the property matters are more complicated given the wife’s position (see paragraph 186).
I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 21 January 2014