MOYSEY & SUTTON

[2014] FCCA 90

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOYSEY & SUTTON [2014] FCCA 90

Catchwords:
FAMILY LAW  ̶  Whether husband or wife children’s principle carer   ̶  where husband’s involvement of children in dispute required only limited time with him  ̶  relevance of husband’s personality disorder   ̶  where wife made whole of financial contribution during latter years of marriage   ̶  relevance of wife providing most of care including financial care for children.

Legislation:  

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 62B, 65DA, 65DA(2), 75(2), 79, 106A
Sentencing Act 1991 (Vic), s.76

Applicant: MR MOYSEY

Respondent: MS SUTTON

File Number: DGC 2505 of 2012

Judgment of: Judge Phipps

Hearing dates: 14, 15, 16 August & 11 October 2013

Date of Last Submission: 23 October 2013

Delivered at: Dandenong

Delivered on: 24 January 2014

REPRESENTATION

The Applicant: Appearing on his own behalf

Counsel for the Respondent: Mr Allen

Solicitors for the Respondent: O’Halloran Davis

Counsel for the Independent Children’s Lawyer: Mr Gates

Solicitors for the Independent Children’s Lawyer: Julie Taylor

PROPERTY ORDERS

1. That the husband forthwith do all such acts and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right title and interest in the property situate at and known as Property B, [B], Victoria being the land more particularly described in Certificate of Title Volume [omitted] (“the [B] property”).

2. That in the event the husband refuses or neglects to execute a Transfer of Land and any other deed or instrument in compliance with the provisions of order 1 herein of these orders, the Registrar or Deputy Registrar of the Federal Circuit Court of Australia at Dandenong is hereby appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to execute all deeds and/or instruments in the name of the husband and do all acts and things to give validity and operation to the deeds and/or instruments.

3. That the wife retain and continue to have the sole right to occupy the property at Property M, [M], Victoria and the husband be restrained by injunction from attending that property other than at the specific invitation of the wife or in accordance with an Intervention Order or children’s orders of this court.

4. That the husband retain the property situate at and known as Property G, [G], Victoria being the land more particularly described in Certificate of Title Volume [omitted] and the property situate at and known as Property L, [T], Victoria being the land more particularly described in Certificates of Title Volume [omitted] and be liable for and indemnify the wife in respect to any liabilities encumbering those properties.

5. That the wife retain all proceeds held in her ANZ bank account.

6. That the wife retain the benefit of the United Kingdom bank accounts and the United Kingdom shares.

7. That the husband retain the benefit of the funds that he has received from the wife by way of loan or an advance that has not been repaid to her to date and the wife undertakes not to take any further action in respect to the payment of those debts, loans or unpaid mortgages.

8. That unless otherwise specified in these orders and except for the purpose of enforcing the payment of any money due under these or any subsequent orders:

   (a)Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date. The furniture, personal possessions and chattels in the home at Property M, [M], Victoria are considered to be in the possession of the wife and the furniture, personal possessions and like chattels at the property at Property B, [B], Victoria are considered to be in the possession and control of the wife and the personal possessions and like chattels in the properties at Property G, [G], Victoria and Property L, [T], Victoria are considered to be in the possession and control of the husband.

   (b)That the parties retain all bank accounts and superannuation held in their sole name.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT DANDENONG

DGC 2505 of 2012

MR MOYSEY

Applicant

And

MS SUTTON

Respondent

REASONS FOR JUDGMENT

Children

1. On 11 October 2013 I made the following final children’s order:

   1.        THAT all previous children’s orders are discharged.

   2.     THAT the wife have sole parental responsibility for the children of the marriage [X] born [in] 2001 and [Y] born [in] 2004.

   3.        THAT the children live with the wife.

   4.     THAT the husband spend time and communicate with the children as follows:

   a)  Each fortnight on a Saturday or Sunday for 4 hours commencing on Saturday 26 October 2013 or Sunday 27 October 2013;

   b)  By telephone each Sunday, Tuesday and Friday between the hours of 7.00pm and 8.00pm with the husband to telephone the mother’s landline or mobile telephone number in the event the children are not at their residential address;

   c)   After not less than two fortnightly visits in accordance with order 4(a) herein, fortnightly time of four hours shall move to being supervised for the first half hour and the last half hour of the time spent;

   d)  Following a further four fortnightly visits in accordance with order 4(c) herein, fortnightly time shall move to being entirely unsupervised for a period of four hours as agreed between the parties subject to such time being no earlier than 10.00am at its commencement and 6.00pm at its conclusion with changeover to occur at such location as agreed between the parties and failing agreement, the [omitted] Railway Station.

   e)   At such other times as agreed between the husband and wife in advance via email.

   5.        THAT orders 4(a) and 4(c) shall only take place if:

   a)  In the case of order 4(a) herein, Ms D supervises the husband’s time with the children and if Ms D is unable to supervise, the spend time period shall not take place;

   b)  In the case of order 4(c) herein, Ms D supervises the first half hour and last half hour of such time and if Ms D is unable to supervise the spend time period shall not take place.

   6.     THAT in respect to order 4(c) the children have access to an independent mobile telephone on which they can call Ms D (in respect to order 4(c) or their mother should the need arise and the husband shall be restrained from stopping the children making such a call.

   7.     THAT the husband and wife shall communicate by email in respect to any issues surrounding the children.

   8.     THAT for the purposes of orders 4(a) and 4(c) by 4.00pm the Thursday before any spend time period Ms D will be requested to advise the husband and wife on what day (Saturday or Sunday) the spend time period is to take place and at what time it is to commence.

   9.     THAT for the purposes of order 4(d) herein, by 4.00pm on Thursday before any time spent period, the husband shall advise the wife by email what time he will be attending for spending time with the children.

   10.THAT the applicant cause Ms D by 4.00pm prior to the first period to return to the mother’s solicitors an undertaking prepared by the mother’s solicitors that she is prepared to supervise the husband’s spend time period and end it if necessary pursuant to order 4(a) and 4(c) herein.

   11.THAT the husband is restrained by injunction from doing the following:

   a)  Attending the home at Property M, [M] and attending any other place where the wife may reside other than at the specific invitation of the wife;

   b)  Discussing with the children or in their presence any parenting arrangements.

   c)   Discussing with the children or in their presence any court proceedings or the content of any document prepared or filed in relation to any court proceedings involving either the husband or the wife including both children and property proceedings.

   d)  Criticising or denigrating the wife or her family in the presence or hearing of the children.

   12.THAT on occasion the wife is free to have an extended holiday with the children for the purpose of retaining contact with family in the United Kingdom subject to:

   a)  Providing the husband not less than 3 months notice;

   b)  Providing the husband copies of return airfare tickets;

   c)   Providing the husband contact details on which the children can be contacted during such holiday;

   d)  Providing to the husband makeup time for any periods that are missed due to that holiday.

   13.THAT the appointment of the Independent Children’s Lawyer be discharged.

   IT IS DIRECTED:

   14.THAT the Independent Children’s Lawyer file and serve an Affidavit by Ms S verifying exhibits “C1”, “C2” and “C3”.

   AND THE COURT NOTES:

   15.THAT the applicant appeared on his own behalf at the commencement of the hearing on 11 October 2013 and applied for an adjournment which was refused. He then left the court room.

   16.THAT pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

2. I said that I would deliver my reasons at a later time.  These are the reasons.  This course is unusual but the situation was unusual.  The children had not been seeing their father.  The wife and the Independent Children’s Lawyer consider that they should be.  The children want to see their father.  The final order is in accordance with the wife’s proposal that the children commence seeing their father immediately with supervision for a limited time and then the time be unsupervised.  The need for supervision is because the father has discussed the family law dispute and his own problems with the children and this has distressed them.  In his evidence the father said that he considered he should and would in the future discuss the family situation and the family law dispute with the children.

3. Paragraphs 4(a) & (b) of the final order are the same as interim orders made by consent when the case was adjourned part heard on 16 August 2013, that is, that the husband spend time with the children each fortnight on a Saturday or Sunday for four hours supervised by Ms D and for telephone communication each Sunday, Tuesday and Friday between the hours of 7.00pm and 8.00pm. 

4. The husband proposed that the parties have equal shared parental responsibility, that the children live with him at Property M, [M] and that he have sole use and occupancy of that house. He proposed that the children spend time with the wife every second weekend from Friday night to Monday morning, half school holidays and for two hours midweek, preferably on Wednesday.

5. An order made 22 March 2013 fixed the application for final hearing on 14 August 2013.  The hearing proceeded on 14, 15 and 16 August 2013 and was adjourned part heard initially to 3 October 2013 but then to 11 October 2013.  On 16 August 2013 the only evidence remaining was cross examination of Ms S who prepared the family report.  The case would then be completed with final addresses.

6. The husband was self represented throughout the hearing.  At the commencement on 11 October 2013 he made an application for adjournment which I refused. I gave reasons for the refusal at the time.  The husband then left the courtroom, having said earlier that if the application for adjournment was refused he would not be staying.

7. The hearing then proceeded on 11 October 2013.  Counsel for the Independent Children’s Lawyer tendered the family report dated 29 January 2013; an addendum to the family report dated 17 February 2013 and a summary family report dated 11 October 2013.  Neither counsel for the wife nor counsel for the Independent Children’s Lawyer wanted to cross-examine Ms S and so the evidence was concluded.

8. Counsel for the mother informed the court that time pursuant to the order of 16 August 2013 had not taken place because Ms D was away.  She was returning shortly before 26 October 2013 and would be available on that weekend.

9. Minutes of proposed orders by the wife, which the husband, before he left the court, acknowledged he had received but only the day before, included some proposed orders which have not been made.  They included that the periods of 4 hours fortnightly would be for four visits and then time would be extended to 8 hours.  The proposed orders included an order that the husband provide proof of engagement with a psychologist recommended by Dr C, or the Independent Children’s Lawyer.  Dr C is a psychiatrist who assessed the husband, prepared a report and gave evidence.

10. The case concerns both parenting orders and property orders.  The property orders require consideration and so a reserved judgement.  The benefit to the children of spending time with their father as soon as possible was clear.  The father’s proposal that the children live with him in the former matrimonial home was clearly not in the children’s best interests.  Therefore I made the parenting orders immediately with the reasons to be delivered at a later date.

11. The husband was born [in] 1955.  He is 57.  The wife was born [in] 1969.  She is 43.  The husband was born in Australia, the wife in the United Kingdom.  The parties commenced cohabitation in February 1991 and married [in] 2000 in England.  The husband was previously married to Ms D who is the person named as supervisor in the orders.  Ms D and the husband have a son and the husband is on good terms with Ms D and the son from that marriage.

12. The husband says that separation occurred on 9 June 2012 but the wife says that the husband and she ceased to function as a married couple many years ago.  The wife says that the marriage finally broke down as a result of the husband pursuing an obsession with property acquisition.  She says that in 2004 the husband wanted her to purchase a [property] in [omitted], Queensland.  She was pregnant at the time.  She refused to consider the purchase of the [property] and she says this was the tipping point in the breakdown of the marriage.  She says that after that the husband spent long periods away from the family home in [M] and gave his address as Property G, [G], a former [omitted] registered in the husband’s company’s name.

13. The husband worked as a [omitted] until the middle of 2001.  He maintains that from then on he was the house husband and principally responsible for caring for the children.  The wife says that from 2004 she was the principal child carer.  She says that the husband spent significant amounts of time living in the house at [M] but she made her own childcare arrangements because she could not run the risk of the husband not being available.  She says that if the husband was able to have the children they did not go to childcare.

14. [X], aged 12, told Ms S that her father comes and goes for 1 to 2 weeks at a time and that her mother was there all the time.  She said that her mother took her and her sister to school and would collect them from after school care on the way home.  [X] could not recall if her father participated in this way.  [Y], aged 8, told Ms S that her mother always took her and her sister to school and would collect them from after school care on her way home from work.

15. Ms S describes the children as enjoying a happy relationship with their father but she said their attachment and stability is with their mother, further evidence that the children’s principal carer has been their mother.

16. Dr C describes the husband as having narcissistic and obsessional personality traits associated with some level of grandiosity as well as a perfectionist and controlling nature.  My impression of the husband in his evidence is that he does believe that he was the house husband and, in his own mind, he believes that he was the principal carer for the children, but clearly he was not.  For instance he states that he took the children to and from school but this can only have been occasionally and not on a regular basis.

17. The husband himself says that at a time in 2008 he and the wife separated and he was living at a property in [G].  He then says that he moved back to the Property M, [M] property and although he acknowledges that the parties were not sleeping in the same bedroom he did not consider that they were separated.

18. Matters came to a head in June and July 2012.  The husband had purchased and paid deposits on a property, [O], and wanted the wife to provide money so that he could settle the purchase.  The wife had some $200,000 in bank accounts.  Its origin was the wife’s inheritance from her mother’s estate.  The money had previously been used to fund the purchase of another property by the husband.  The husband claimed the money had been given to him whereas the wife said it had been lent.  This may be an issue that has to be resolved in the property proceedings.  Its relevance to the children’s proceedings is that the wife had money in her bank account and the husband asked her for it.

19. The husband claims that the money was gifted to him, but again that is not an issue that has to be resolved in the children’s proceedings.

20. The wife planned, with the consent of the husband, to take the children to the United Kingdom to visit her family.  The date of departure was 18 June 2012.  She says that leading up to the departure the husband’s behaviour became increasingly erratic.  He kept demanding that she provide him with $220,000 to complete the purchase.  She says he told her “you have signed my death warrant” and that she would find the house burnt down with him dead inside.  She says he attempted to take a mouthful of Panadol in front of the children and then read his will to them.

21. The husband in his description of events at the time treats the purchase of the properties as a joint business venture.  This was clearly not the case.  The husband may have talked to the wife about the purchase of the properties beforehand but I am satisfied that while she lent the husband the deposit under pressure from the husband it was his venture not hers and she expected him to find the balance of the purchase price.

22. While the husband disputes the wife’s version of what occurred he does say that on the evening of Friday, 8 June 2012 at the house in [M] he wanted to discuss the completion of the purchase.  He claims the wife refused to answer him and he said “I know you want to return from overseas to find the house burnt down with me in it and a note on the car in the carport”.

23. The husband says that the wife said she wanted to separate and asked him to leave the house.  He said he was expecting the response and went to what he describes as “our bedroom” and began to cry.  He says he was devastated.  Amongst other things he says he had a terrible headache and he took three Panadol.  He had an angina attack and took prescribed medication.  He says the next day he was packing and found his will.  He wrote a new will and gave the respondent a copy.  He says that on the following morning he asked to speak to [X] who was in the bedroom with her mother and sister.  He says the wife would not let him and so he explained he was leaving, that he had written a new will and told them what was in the will.

24. Whichever is the correct version the husband’s behaviour would obviously have alarmed the wife and been upsetting to the children.  The wife says that the husband’s behaviour became increasingly erratic, she became alarmed and spent several days staying in motels.

25. On 17 June 2012, the evening before their planned departure for England, the wife and the children stayed with Ms D and her partner at their home near Melbourne airport.  The wife says she had arranged for the children to have dinner with the husband at a location away from the house prior to their departure, but the husband did not attend.  She says he later came to the house uninvited and shouted at her and demanded money.  She says he wanted $125,000 as a guarantee that she would return the children to Australia.

1. The husband’s version is that he had become convinced that the wife did not intend to return the children to Australia.  This was because he said that he found that the wife had taken out travel insurance, something he claimed she had not done before, and he claimed she had withdrawn $200,000 from her bank account.  He says he was asking the wife to pay him back $125,000 which he said he had given her.

2. Again, whatever the correct version what happened next must have been alarming for the children.  The children arrived in a car with

   
   

   Ms D and her partner in the driveway of the house.  The wife says that Ms D wanted to remove the children from the scene which was happening in the house.  The husband jumped onto the bonnet of the car and held himself on by the windscreen wipers and remained there until police arrived about 10 minutes later.  The children remained in the car.  The husband attempts to justify his behaviour by saying he was afraid that his children were being taken away.  The husband does not appreciate how alarming this must have been for the children.

3. While the wife and children were in England the husband rang a number of times.  The wife said he became increasingly aggressive asking for money.  The husband acknowledges that he discussed money but denies being aggressive.  The wife’s father had telephone conversations with the husband.  The wife’s father said that in one of those conversations the husband said he was minded to set fire to one of his properties with him in it as his business was in meltdown because the wife would not lend him money.

4. The husband denies making this statement.  It is a unusual statement to make and something that a person in the position of the wife’s father at the time of the telephone conversation would recall.  There is no reason why the wife’s father would invent such a statement and its unusual nature means that it is improbable that the wife’s father would be mistaken in his recollection.  I am satisfied that the statement was made and I am satisfied that the husband did become increasingly aggressive in his telephone conversations.

5. The wife returned to [Victoria] with the children on 18 July 2012.  She stayed at a friend’s house rather than her home because she was afraid of the husband’s behaviour.  The husband attended at that home and because the wife thought his behaviour was intimidating and scary on 19 July 2012 she applied for and obtained an interim intervention order. The husband disputes the validity of this interim intervention order. The husband says that his address was given as Property G, [G], Victoria instead of Property M, [M] and claims that this made the intervention order invalid. I am satisfied that for some time prior to July 2012 the husband had spent much of his time at the [G] property and that that was its proper address. Even if it was not, the identity of the respondent to the intervention order is not in doubt. The respondent is the husband. The State Magistrates Court of Victoria records about the information for breach of the intervention order referred to below show that that court considered it a valid order. I am satisfied he was served with the intervention order on 19 July 2012. He then made his own application for an intervention order.  

6. The interim intervention order obtained by the wife prevented the husband from attending at the family home at Property M, [M]. The wife returned to the family home on 20 July 2012 and the husband was still there.   The police came and the husband refused to leave the home and he was arrested and removed by the police.  The certified extracts from the State Magistrates Court of Victoria show that he was charged with breaching a family violence interim intervention order.  Certified extracts state that on 23 July 2012 he was remanded to 24 July 2012. The extract records that he may be at risk due to an undiagnosed disability or illness and that he suffered a heart attack on 21 July 2012 whilst in custody and admitted to [omitted] Hospital.  The extract says that on 23 July 2012 no application for bail was made.

7. On 24 July 2012 he was remanded to 25 July 2012.  The extract records that he had been released from hospital and that bail was refused on the ground that there was an unacceptable risk that the applicant would commit an offence whilst on bail.  It is clear from the husband’s evidence that he considered he was entitled to return to the family home.  If he did so he would commit another breach of the intervention order and clearly that is the unacceptable risk referred to by the State Magistrates Court of Victoria.

8. On 25 July 2012 the husband was remanded to the State Magistrates Court of Victoria at Melbourne on 3 August 2012. The extract records that no application for bail was made. On 3 August 2012 the information alleging a breach of the interim intervention order was dismissed under s.76 of the Sentencing Act 1991 (Vic). The court order notes under the heading “Special Conditions” that the husband is 56 years old, has no prior convictions and had been remanded for a period of 15 days. The husband claims that the information was dismissed which is correct but not because the charge was found not to be proved but rather because the Magistrate exercised his discretion to dismiss the information taking into account the matters described under “Special Conditions”.

9. I am satisfied that the husband spent most of the 15 days on remand either because he refused to undertake not to go to Property M, [M] or would not accept a condition of bail that he not go to that address.  While in custody the husband went on a hunger strike.  He says in one of his affidavits that he refused to eat until he had had a meal with his daughters.

10. Significant to the mother’s proposal and Ms S’s recommendation is the husband’s inappropriate conversations with the children.  The wife gave evidence that she kept a diary of contact between the husband and children by telephone and in person.  She says there are many times when she was concerned.  Instances include the following, not disputed by the husband.  I accept that they occurred.

11. The wife says that in September 2012 the husband continued to ring saying things to the children like, “I’ve found a dog would you like it?”; “You had better ask your mum if you can have it because I can’t afford it”.

12. The wife says that on 16 September 2012 the husband called [X] and she ended up sobbing. The wife says that the husband was telling [X] all about his time in jail, his hunger strike and that he had no money.

13. The wife says that on 23 September 2012 the husband spoke to [Y] and told her that he cannot see her “mummy is being mean” that he missed her and cries every night and every morning.

14. The wife says that on 11 December 2012 when [X] told the husband that they had a new car the husband became angry and asked [X] how much it cost. She says that in that conversation [X] had to ask the husband several times not to shout at her.

15. The wife in her affidavit of 5 August 2013 sets out a number of other instances of similar inappropriate conversations and conduct by the husband.

16. The husband has been seeing a psychiatrist, Dr K, monthly for about 22 years. The consultation is paid for by WorkCover because of a claim the husband made whilst he was a [occupation omitted]. While the husband was in custody the police called the Crisis and Assessment team. Dr K gave evidence that the manager of the team rang him and said that the husband appeared to be psychotic or crazy and thought that he was psychiatrically ill. Dr K said he advised the manager that was unlikely to be the case. He thought that what the Crisis and Assessment Team was seeing was more a narcissistic rage, an extremely distressed man “who’s actually sort of blown his top”. Dr K did not think it was indicative of serious psychiatric illness.

17. Dr C saw the husband on 3 April 2013 for the purpose of preparing a psychiatric report.  Dr C concluded that there was some personality dysfunction present and that the husband has some narcissistic and obsessional personality traits. Dr K agrees with Dr C. Neither psychiatrist considers that the husband presents any risk to the children.  Both say the husband needs continuing psychiatric or psychological support.

18. In her evaluation in the family report Ms S says that the husband’s focus during the interview process prioritised his property portfolio and there was little focus on the needs of the children. She says that his description of his incarceration, health issues and hunger strike were presented in a supercilious manner at times masking any emotional pain that he may have endured. She says that the husband lacks insight into how his behaviour has impacted upon his family. She says he sees his request to take on the full-time care of the children as a way of re-entering the [M] property.

19. Ms S says that the children’s attachment and stability is with their mother and both children told Ms S that while they enjoy their time with their father they want to live with their mother.

20. The husband in the past has spoken to the children about the parenting dispute and said that he considers that he should continue doing so. He questions the children about their mother’s behaviour. In this context it is significant that Ms S says that [X] spoke of being comfortable with her father as long as he did not question her, and that she was ready to spend more time with him.

21. Ms S prepared a summary family report dated 11 October 2013. For the report she read various documents including affidavits filed since she prepared the main family report, Dr C’s report and a letter from the husband received by the Independent Children’s Lawyer on 8 August 2013. Affidavits by the husband annexed letters that he had written to the children.

22. In the summary family report Ms S refers to Dr C identifying that the husband has some narcissistic and obsessional personality traits and this is associated with some level of grandiosity and that he has a perfectionist and controlling nature.  She says that the husband has written detailed letters.  She refers as an example to a letter by the husband to his children on 25 July 2013.  She says that the letter commences appropriately with the theme being how excited the husband was to receive a parcel from his children.   However the letter then goes on to what she describes as undermining comments not appropriate given the way the children might interpret them.

23. Ms S concludes that the father is not a risk to the children but his centring on himself and his inappropriate remarks to the children are a problem.  She says that the challenge for the children is to enjoy their father’s time without their worrying about him.  The father is distressed by his current circumstances and Ms S says it is unlikely he will be able to desist discussing his current circumstances with people around him.  She says that in his distress he may be unable to recognise how his questioning, making remarks or needs are being received by his children or others in his circle.  She says his distress is understandably affecting the children and in turn distressing them. 

24. In her original report Ms S had recommended overnight time.  In her later summary report, given the concerns she described, she recommended that the children spend time with the husband on two Saturdays and Sundays per month with the assistance of a supervisor for the first three.

25. Section 65DA of the Family Law Act 1975 (Cth) contains a presumption that it is in the best interests of the children that parents have equal shared parental responsibility. The presumption may be rebutted if it is not in the children’s best interests for it to be applied. Section 60CA provides that the children’s best interests are the paramount consideration in determining parenting orders. Section 60CC contains the best interest’s considerations. The objects of part VII of the Family Law Act 1975 (Cth), the parenting provisions, in which the other sections are contained are in s.60B. The objects include the right of children to have a meaningful relationship with their parents and to have the parents involved in their lives.

26. Decisions of the Full Court of the Family Court of Australia described the pathway through the legislation.  After identifying the proposals and the issues the first Step is to look at the best interests considerations.

27. Section 60CC contains primary considerations and additional considerations. The first primary consideration is the benefit to the children of a meaningful relationship with each parent. The mother is the children’s principal carer and has been throughout their lives.

    
    

    Ms S’s report and evidence show that the children’s principal attachment is to their mother.  The children’s meaningful relationship with their mother would be disrupted if their relationship with her was changed by them living substantially with the husband.

28. The children enjoy their father’s company and benefit from having a meaningful relationship with him.  For the relationship to be as meaningful as possible their discomfort at the husband’s talking to them about his own problems and issues needs to be taken into account.  A short period of supervised time followed by periods of time not including overnight time is the best way of promoting the children’s meaningful relationship with their father.

29. The second of the primary considerations is the need to protect the children from harm and potential harm.  Neither psychiatrist nor Ms S considers the father is a risk to the children.

30. The first of the additional considerations is the views of the children taking into account their age and state of development.  Both children told Ms S that they want to live with their mother and their reasons for saying so are logical.   She has been their primary carer and has done that well. The children want to see their father and [X], the older child, wishes that her father did not talk to her as much in the way he does.  Again, this is logical because a child [X]’s age would naturally find the type of discussions the father has been having with her discomforting.  The children’s views support orders that they live with their mother and have time with their father which they can enjoy without being discomfited by him.

31. The next of the additional considerations is the children’s relationship with each parent and other persons.  The evidence shows that the children’s mother is their principal carer and that she cares for them well.  They have a good relationship with their father but because of his involvement of the children in his own problems the time they spend with him needs to be limited.

32. The next consideration is the extent to which each of the parents has participated in making decisions about major long-term issues spending time and communicating with the children. I am satisfied that the decision making about the children has largely been with the mother.  The wife’s evidence, Ms S’s observations of the husband and his evidence shows that he has been very much taken up with his own concerns in particular the purchasing of property.   The evidence shows that prior to July 2012 the husband was away from the family home in [M] much of the time and since then has not spent time with the children as much as he could.  He has communicated with the children by writing to them.  I have already described Ms S’s opinion of how some of that communication must have affected the children.

33. The next consideration is the extent to which each of the parents has fulfilled their obligations to maintain the child. While particularly recently this obligation has been fulfilled principally by the wife, the evidence under this consideration has little significance in this case.

34. The next consideration is the likely effect of any change in the child’s circumstances including the likely effect of any separation from either parent.  Since the wife is and has been the children’s principal carer and their principal attachment is to her, and because they wish to live with her, they would be adversely affected if the living arrangements were changed substantially so that they were living with the husband.

35. The consideration of the practical difficulty and expense of the children spending time with the husband has some relevance. At the time of the hearing the husband was living in a [property] at [O] which he had purchased on a terms contract.  The time for payment of the balance under the contract had expired and the evidence shows that the vendors had extended the time but were threatening to revoke the contract.  While the husband was living at [O] he was some hours drive away from the children and so this did limit his ability to spend time with them.  Where he will be living in the immediate future is uncertain.

36. The next consideration is the capacity of each parent to provide for the needs of the children including emotional and intellectual needs.  The husband’s behaviour immediately before and after the children’s trip to the United Kingdom with their mother is sufficient evidence of the husband’s inability to provide properly for the children’s emotional and intellectual needs.  His behaviour centred solely on himself, and as

    
    

    Ms S says, he does not understand the effect his behaviour has on the children.

37. The consideration concerning the children’s maturity, sex and lifestyle is relevant to the extent that the children’s ages and sexes are obvious and their lifestyle is a stable life living with their mother and attending school.

38. The children are not of Aboriginal or Torres Strait Islander descent.

39. The mother obtained a family violence order in July 2012. Its relevance is the behaviour of the husband that led to the wife’s application for the order. That behaviour is relevant to other considerations already dealt with.

40. The next Step in the pathway through the legislation is to consider whether the presumption of equal shared parental responsibility is rebutted.  The children’s best interests are not served by applying the presumption.  The husband is unable to focus on the needs of the children.  The psychiatric evidence and the evidence of Ms S shows that this is the case.  Attempts by the wife to communicate with the husband and discuss major long-term issues with him would likely be met by the husband with responses concerning his own issues or the wife’s lifestyle all irrelevant to a particular issue such as schooling or medical which the wife might be wishing to discuss. The husband would likely respond in such a way that a sensible discussion about the issue would not be possible, and he might want a solution to the issue which he saw would advantage him rather than the child or children.  Ms S considered that the husband saw his application that the children live with him as a means of him returning to the [M] home.

41. The wife has made all the decisions about major long-term issues in the past and has done well. An order for equal shared parental responsibility would impose on her an obligation to engage the husband in likely fruitless discussion which would only hinder her ability to make decisions in the children’s best interests.

42. Since the children’s best interests are met by making an order for the wife to have sole parental responsibility I do not need to consider questions of equal time, substantial and significant time or reasonable practicability.

43. The children’s best interests are met by orders that they live with their mother and spend daytime time only with their father with a short period of supervision.  The wife is and has been their principal carer. The children’s principal attachment is to her and they wish to live with her.  The husband does not have the ability to care for them, particularly to provide for their emotional and intellectual needs. The husband does not understand the effect on the children when he discusses his problems with them.  The children’s relationship with the husband will best be promoted by daytime time only when they can enjoy the time with their father and limit the risk that he will involve them in his own problems.

Property

1. Section 79 of the Family Law Act 1975 (Cth) deals with alteration of property interests. The court must first identify the legal and equitable interest of each party in property and then determine whether it is just and equitable to make a property order. The real estate property and values are agreed. The values nominated by the wife for each motor vehicle I will include on the basis that they are admissions against interest. The wife’s bank accounts and superannuation are agreed or established by the evidence. For the purpose of establishing the assets and liabilities the wife accepts the liabilities as alleged by the husband.

2. The non-superannuation property is:

   Property M, [M] (Wife)   $   250,000

   Property G, [G] (Husband)   $   275,000

   Property S, [T] (Husband)   $   183,000

   Property B, [B] (Husband)   $   149,000

   ANZ bank account (Wife)   $   218,000

   United Kingdom bank account (Wife)             $     27,960

   United Kingdom shares (Wife)   $        5,690

   Wife’s motor vehicle   $     20,000

   Husband’s motor vehicle   $      2,000

   Total   $1,130,650

   Liabilities

   [G] rates   $     14,000

   VCAT order re [T]   $      4,000

   Building demolition costs   $     24,000

   Total   $     42,000

   Net non-superannuation assets   $1,088,650

   Superannuation

   Wife   $   135,990

3. The husband says that he did have $7,000 superannuation which he drew down.

4. In January 2009 the husband entered into a three-year terms contract of sale to purchase the disused [O] property near [omitted] in Victoria.  The deposit was $25,000 and the husband has made subsequent interest payments.  In July 2013 the husband filed an application in a case applying for an order that the wife provide the balance of the purchase price for the property from the money held in her name in the ANZ bank.  I refused the application for reasons I gave at the time.  At the time of the hearing the husband’s evidence was that the vendors had not rescinded the contract. Neither party proposes that any value be assigned to the [O] property for the purpose of determining the matrimonial property.

5. The husband did not file a case outline. At the commencement of the hearing on 14 August 2013 I asked him for his proposal. His proposal was that the property at Property M, [M] be transferred to him, that the $218,000 in the ANZ bank account in the name of the wife be transferred to him and that he retain the properties at [T] and [B].  He proposed that the property at Property G, [G] be transferred to the wife and that she retain her superannuation and the shares and money in the United Kingdom bank account.

6. The wife’s proposal is that she retain the property at Property M, [M], the ANZ bank account, the United Kingdom shares and bank account and her superannuation and that the property at [B] be transferred to her.

7. Each party proposed that they retained their motor vehicles and whatever other possessions held by them.

8. Each party proposes that an order be made under s.79. The parties have separated and the basis on which they lived together and any extent to which they had joint finances no longer exists. Therefore it is just and equitable to make an order under s.79.

9. After establishing the property and deciding that it is just and equitable to make an order the next Step is to consider each party’s contributions. These are described in s.79(4). These are the financial and non-financial contributions made directly or indirectly by or on behalf of either party to the acquisition conservation or improvement of the property, and the contribution made by either party to the welfare of the family and any children of the marriage including any contribution made in the capacity of homemaker or parent.

10. The husband was born [in] 1955 and the wife [in] 1969. They commenced cohabitation in February 1991 and married on [omitted] 2000 in the United Kingdom.

11. At the commencement of the relationship the wife was 21 and the husband 35. The wife was travelling in Australia and had no assets. The husband’s evidence about his assets is confusing. He says in an affidavit that he had over $45,000 in cash and assets. He says one of the assets was a large bus which was sold for $27,500 and he had $15,000 in cash.

12. The husband was previously married and he and his wife operated an incorporated business which went into receivership and subsequently liquidation.  The husband started seeing Dr K, his psychiatrist, in 1990 and one of the things the husband acknowledges discussing with Dr K is that the husband was afraid of being declared bankrupt.  He was not declared bankrupt but the fact that he discussed it suggests that he may have had some liability following the failure of the business. Nonetheless he did not become bankrupt, nothing contradicts his claim that he had about $45,000 in cash and assets at the commencement of the relationship with the wife and I find that that was the case.

13. When he met the wife the husband was employed as a [omitted]. He commenced seeing Dr K as a result of a WorkCover claim.  This arose out of an allegation of sexual misconduct.  The husband says he was required to leave the [workplace] because of this.  This happened shortly before he met the wife.

14. The husband worked as a [omitted] until about 2001.  In mid June 2001 he made a WorkCover claim and received WorkCover payments for about a year.  While it is not clear it seems that there were periods prior to this when he was receiving WorkCover payments.  Whatever the situation he was working or receiving payments until 2001 or 2002 when his employment as a [omitted] was terminated.  He made an unfair dismissal claim and was paid about $16,500.  After that the husband had employment during summer as a [omitted] but otherwise was not employed.

15. The wife has been employed throughout the relationship.  The parties moved to [M] in 1994 and since then, except for periods of maternity leave, she has worked with the [omitted] until 2009.  She was made redundant by [omitted] in January 2009 and received a redundancy payment of $24,589. At the time of the hearing she was employed by [omitted].

16. The reasons for judgement relating to children’s matters show the husband’s interest in buying and selling properties.  Some that he bought were subsequently sold by local councils for non-payment of rates.  The husband made a profit on some and a loss on others.  The evidence does not permit a full history of all of these transactions.  The property constituting the property pool is either in the name of the wife or the name of the husband.  The wife says that the parties kept their finances separate and she knew little about the husband’s purchases.  The husband describes all the purchases as a joint business venture.  The husband may have thought they were but I satisfied that as far as the wife is concerned her purchases were separate.

17. The wife’s mother died on [date omitted] 2003. The wife’s two brothers were the executors and one of them, Mr S, filed an affidavit and gave evidence. His account of payments made from the estate is undisputed and is verified by the documents annexed to his affidavit.

18. The wife’s mothers will provided for a small legacy to [X], the only grandchild born at the time of the mother’s death.   After that [Y] was born and the other brother’s two children were born and all agreed that all grandchildren should, in accordance with the mother’s wishes, receive a legacy.

19. Payments made to the wife from the mother’s estate were $70,382.03 on 20 January 2004, $162,211.45 on 18 July 2005 and $161,860.41 on 16 October 2008.   The total is $394,453.89.

20. The payments were made by transfer from the United Kingdom bank where the estate account was kept to bank accounts in Australia. The payment of $162,211.45 on 18 July 2005 was, on the wife’s direction, made to the husband’s account.   The husband alleges that this latter amount was a gift to him whereas the wife says she lent it to the husband so that he could complete the purchase of the old [M building omitted].

21. Whether money was given to the husband or lent to him was dealt with at some length in affidavits and in the evidence at the hearing. In truth, it probably does not matter because the money’s importance is that it is a contribution to the acquisition of matrimonial property, and it is a contribution by the wife. Whether it was a gift or a loan would not seem now to matter in a case under s.79 of the Family Law Act 1975 (Cth).

22. Since it was pursued as an issue at the hearing I should make a finding.

23. The husband says that using the inheritance from the mother and other funds the parties bought and sold several properties. He says the last to be sold was the old [M building omitted] for $307,000 and part of a farm which was subdivided. The latter was sold for $215,000. He says that after agent’s commissions and other expenses the parties received about $500,000. He says that after the sale of the old [M building omitted] in May 2010 he gave the wife $125,000 and after the sale of the farm he gave her $125,000 on 13 August 2011.

24. He then says that the money was supposed to be used to purchase a property at [O] bought for $250,000 with a deposit of $25,000. The property was purchased on terms.

25. The wife says that the husband put pressure on her in financial matters.  She says that even though the parties were separated she was trying to maintain a resemblance of normal family life for the sake of the children.  Therefore she lent the husband money on occasions.

26. She describes what happened with the money received from her mother’s estate.  After the first payment in 2004 she purchased two motor vehicles.  On 23 January 2004 she purchased a Mitsubishi Lancer for her own use in the sum of $13,875.  On 13 May 2004 she purchased a Ford utility for the use of the husband in the sum of $8,352.

27. After the birth of [Y] in [omitted] 2004 she was living in [N] and slept in a storage room on the property with [Y] as she had nowhere else to go.  The house she had purchased at Property M, [M] was rented.  The [N] property was a [omitted]. From October to December 2004 she began to lend the husband funds from the inheritance to undertake work at the property and to provide food for [omitted] groups which had been booked.  She kept some hand written records and she says the loans were mainly in cash and amounted to around $20,000.

28. In April 2005 the husband wanted to buy the old [M building omitted].  The wife describes the husband as becoming obsessed with wanting to buy the property.  He wanted a deposit. She says she resisted at first and acquiesced to relieve the pressure the husband was placing on her.   She says it was a loan.

29. By the beginning of July 2009 the husband had not been able to obtain a loan for the balance and she says he began to put pressure on her again.  She says he became increasingly threatening and she finally agreed to lend a further sum of money from her mother’s estate contingent on a mortgage being registered.  She engaged a solicitor to act, the mortgage was registered and the money was paid directly by her brother into the husband’s bank account, the amount of $162,211.45 in July 2005.

30. The mortgage was for $175,000 but the wife says she had contributed the deposit and the amount of $162,211 totalling $183,211.

31. In January 2009 her employer, [omitted] made her redundant and she received a payment of $24,589.  She secured her current employment almost immediately.  She says the husband put pressure on her to lend him $25,000 to place a deposit on a disused property at [O] near [omitted].  She provided the funds.  She says he told her she should not worry about the balance as he would be letting the property for the three years before he was required to settle and will definitely arrange his own finance.  On 14 January 2009 she paid him $25,000.  She says it was on the understanding that it would be returned but it has not.

32. In 2010 she moved back to the property at Property M, [M].  She learnt that [omitted] Water had attempted to sell the old [M building omitted] for non-payment of water rates by the husband.  As mortgagee she engaged a solicitor and negotiated a reprieve of the sale.  The husband then sold the property at private auction for $307,000, a considerable profit.  She expected to be paid an amount of $175,340 being the original sum plus legal fees associated with the [omitted] Water issue.  She received only $125,340.  She says this was obviously an administrative error.

33. In 2010 [omitted] Shire Council sold the property at [N] due to unpaid rates.  The wife believes the husband made a healthy profit even after deduction of legal and sale fees and the unpaid rates. She says he received money as compensation for damage done by the Black Saturday bushfires to the [N] property and his [G] property.

34. The husband used the money he received to purchase a property at [B] and placed a deposit on multiple blocks of land at [T].  In October 2010 the husband did not have funds to settle on the property at [T].  In November 2010 she agreed to provide $140,000 to complete the purchase.  The wife says that she and the husband agreed on the amount of money which would be due to her after the loan for the [T] property was made.  This totalled $225,000 which included the $50,000 shortfall from the sale of the old [M building omitted] and various other smaller loans and payment of bills.  The husband signed a statutory declaration in which she acknowledges that he has in his possession an amount of $85,000 belonging to the wife and that the wife will be provided with a bank cheque payable to the National Australia Bank for $140,000.

35. After settlement of the [T] property planning permits required blocks of land to be consolidated and the wife says she loaned him a further amount.  The wife says she lent the husband $7,740 on 27 January 2010 so that he could do that.

36. The wife says that on 7 March 2011 she lent the husband $10,000 for the purchase of a new motor vehicle and that shortly after this she made payment of bills and accounts for the husband and she has retained only some records. She says her recollection is that with the vehicle purchase on 7 March 2010 the amount was approximately $26,000.

37. On 23 August 2011 as a result of the sale of two of the consolidated blocks at [T] the husband gave the wife a cheque for $125,000. In her affidavit of 5 August 2013 the wife includes a table in which she sets out amounts lent to the husband totalling $357,740 that she can verify and $44,352 that she cannot verify. The husband has repaid her $250,340 and so she says he has retained the benefit of at least $151,752.

38. The wife calculates that she has spent approximately $40,000 of the inheritance on motor vehicles, trips to the United Kingdom to see her family, legal bills and household expenses.  $218,140.10 remains in her bank account.

39. The wife’s claim that she lent the husband money is largely verified by the documents.  She held a registered mortgage over the old [M building omitted] for an amount of $175,000 and the husband subsequently signed a statutory declaration acknowledging $225,000.  He repaid money.  I do not need to analyse why the husband might allege that money was given to him or that the money was his.  The contemporary documents support the wife. As well as the contemporary documents the wife’s description of payments she made and payments she received is detailed and believable. I find that her description of the payments is correct.

40. The position with financial contributions is that since 2001 or 2002 the husband has made financial contribution only in the sense that there have been profits on the sale of property he had purchased.  He earned some money as a [omitted] but insignificant compared to the wife’s earnings.  Otherwise all financial contribution since then has been by the wife.

41. The wife says that the parties were effectively separated from 2004.   The history she gives of the use of the money she received from her mother’s estate commencing in 2004 shows that the party’s financial affairs remained connected.  Notwithstanding that I accept the wife’s evidence that the husband was absent from the matrimonial home for much of the time, living at [N] or [G]. I accept that the care of the children largely fell to the wife. The husband says that he carried out tasks around the family home and some renovations and I accept that he did, but largely I find that the task of caring for the children and maintaining the family since about 2004 was carried out by the wife.

42. The husband received a redundancy payment of $16,500 in 2001 or 2002. In contrast the wife received from her mother’s estate $70,382.03 on 20 January 2004, $162,211.45 on 18 July 2005 and $161,860.41 on 16 October 2008. A total of $394,453.89. In January 2009 she received a redundancy payment of $24,589.

43. The wife’s financial statement of 30 August 2012 gives her weekly salary before tax as $1,396, $72,500 per year. In addition the financial statement says she received $182 per week interest on bank accounts, an amount of $9,464 each year. The wife’s income in earlier years is not in evidence but it was clearly enough to maintain the family.

44. The net value of the non-superannuation assets is just over $1 million. The wife’s inheritance from her mother’s estate and a redundancy payment contributed about $319,000 between January 2004 and January 2009.  When those amounts are considered along with the wife’s almost sole financial contribution from 2001 and 2002 and her child caring and homemaker role she has made a greater contribution than the husband. The husband made a contribution at the commencement of the relationship that was many years ago.  He contributed while he was employed or receiving WorkCover payments and made a financial contribution which is hard to assess from profits on property sales.  The proper assessment of contributions is 70% by the wife and 30% by the husband.

45. After determining contributions the next Step is to consider whether any adjustment should be made for s.75(2) matters. The relevant ones here are the age and state of health of the parties, their property and their ability to earn income. That the wife has the care of the children and is unlikely to receive child-support payments or other financial assistance from the husband must be taken into account.

46. The husband is 57 and the wife 43.  Both are in good health except that the husband has some personality dysfunction present and narcissistic and obsessional personality traits.  Except for summer work as a [omitted] he has not had paid employment since 2001 or 2002. Given his age and lack of employment for more than 10 years his job prospects are poor.

47. The wife is employed at about $72,500 a year and since she has had employment for many years and was able to find new employment immediately after her redundancy from [omitted] the probability is that she will continue in employment into the future.

48. The husband is not paying child support and is unlikely to do so in the future. That means the wife has all the financial responsibility for two children of the marriage under the age of 18. For [X] that will continue until [date omitted] 2019 and for [Y] until [date omitted] 2022. The wife’s superior income future is balanced against her sole responsibility for the children. There should be no adjustment for matters under s.75(2).

49. The husband does not propose any adjustment of the wife’s superannuation.  If the wife’s superannuation is added to the net non-superannuation assets the total pool is $1,224,640.  70% of that is $857,248.  The wife’s proposal is that she receive non-superannuation assets of $670,650 and superannuation of $135,990, assets totalling $806,640.

50. If superannuation is considered separately then these considerations apply.   The wife made all financial contribution to the superannuation.   The child carer and homemaker considerations are the same as the non-superannuation considerations. Given that the husband made no financial contribution contributions are more than 70% in favour of the wife.

1. The husband has no superannuation while the wife does and she will continue to contribute to it. When the superannuation becomes payable the wife would no longer have the care of children. She will therefore have superannuation and the husband will have none. If a 20% adjustment in favour of the husband is made for s.75(2) matters and contributions assessed at 70/30 superannuation should be divided equally. This means that the wife should receive 70% of the non-superannuation assets, that is $762,055 and superannuation of $67,995, totalling $830,050.

2. The husband does not apply for a superannuation splitting order. If one was to be made it would be less than 50% in the husband’s favour, and if that was done there would need to be some further allowance in non-superannuation assets made for the wife beyond her proposal. In the circumstances the wife’s proposal is the proper way to provide for the division of matrimonial assets under s.79 and her proposed order is just and equitable.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date:  24 January 2014