Mullen and Acken (No. 4) (Final Property and Parenting)
[2011] FamCA 1021
•5 December 2011
FAMILY COURT OF AUSTRALIA
| MULLEN & ACKEN (No. 4) (Final Property and Parenting) | [2011] FamCA 1021 |
| FAMILY LAW – CHILDREN – Where the mother did not attend the final hearing but was afforded procedural fairness – Whether the children should spend time with the mother – Whether the children should continue to reside with the father FAMILY LAW – PROPERTY – Division – Superannuation splitting – Small marital pool – Whether there should be an adjustment in circumstances where the father is the primary carer FAMILY LAW – COSTS |
| Family Law Act 1975 (Cth) ss 60CC, 60CD, 61B, 61DA, 62G, 65DAA, 65DAC, 68LA, 69ZT, 75(2), 79, 117 Evidence Act 1995 (Cth) ss 55,135 |
| Mullen & Acken (No. 2) [2011] FamCA 772 In the Marriage of Kohn (1977) 30 FLR 175 Brown and Brown (1998) FLC 92-822 at 85,347 |
| APPLICANT: | Ms Mullen |
| RESPONDENT: | Mr Acken |
| INDEPENDENT CHILDREN’S LAWYER: | MR D PIEKARSKI |
| FILE NUMBER: | MLC | 10068 | of | 2010 |
| DATE DELIVERED: | 5 December 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 21 November 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | Mr B Kiernan |
| SOLICITOR FOR THE RESPONDENT: | TJ Mulvany & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boymal |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
ORDERS:
IT IS ORDERED THAT:
1.The husband have sole parental responsibility for the children S ACKEN born … September 1998, E ACKEN born … March 2000 and T ACKEN born … December 2001.
2.The children live with the husband.
3.The children spend time and communicate with the wife as agreed in writing between the wife and husband from time to time.
4.The wife be at liberty to forward letters, cards, presents and like items not more than once per calendar month and on special occasion days addressed to the child or children addressed care of the husband and sent by pre-paid post to such address (including a post office address) as is nominated by the husband from time to time and advised to the wife by email and/or by prepaid post to such address of the wife as shall be known to the husband and the husband, in his discretion, may withhold any item from the children, or any one of them without notice to the children (or any of them) or to the wife.
5.The wife keep the husband advised of a postal address and email address for the purposes of:-
i.enabling the children to forward letters, gifts and cards to her;
ii.wherever these orders provide for agreements in writing; and
iii.wherever these orders provide for the husband to notify the wife.
6.The husband do all such acts and things and sign all such documents to:-
i.authorise and request the wife to receive at her expense, copies of all reports, notices, newsletters, photographs and all other such things that are ordinarily provided to parents by each of the children’s schools; and
ii.have the wife noted as the children’s mother for the purpose of all enrolments and contact information and, subject to the husband’s discretion, have the wife noted as an emergency collection person of the children or any of them.
7.Until further order, the wife be and is hereby, restrained by injunction from attending upon the children’s school or the school of any of them without the express prior written consent of the husband.
8.The husband notify the wife promptly of:-
i.any decision he has made in relation to major long term issues in relation to the children or any of them; and
ii.any medical or other emergency affecting the children or any of them.
9.The husband be at liberty to provide a copy of this Order, the reasons for decision subsequently published by the Honourable Justice Bennett and the report of the family consultant, Ms L, dated 27 October 2011, and the affidavit of Dr N, affirmed 2 September 2011, to:-
i.any health and/or allied professional assisting any one or more of the children;
ii.any educational professional assisting any one or more of the children;
iii.Constable W (Cxxx) care of the G Police Station, or such other police officer familiar with the proceeding.
10.In the event that either the husband or the wife issue any further applications and/or proceedings, including any proceedings alleging a contravention of a parenting order, pursuant to provision of the Family Law Act 1975 IT IS REQUESTED that the Manager or Registrar of such Registry in which proceedings are commenced cause the proceedings to be returnable in the Melbourne Registry of the Family Court of Australia initially before me in the event that I am reasonably available.
11.Until further order, the wife be, and is, hereby restrained by herself her servants and agents from being within two hundred metres of the former matrimonial home at B suburb, Victoria for the period up to and including the date of the settlement of the sale of the former matrimonial home without the prior written consent of the husband.
12.The order for the appointment of the independent children’s lawyer be and is hereby discharged.
13.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
14.Paragraph 6(b) of the Orders made on 21 October 2011 be varied to incorporate the following:-
b) That the former matrimonial home, being the property at B suburb, Victoria (“the former matrimonial home”) be sold in such manner and for such price and on such terms and conditions as the husband shall determine AND IT IS DIRECTED that it shall not be necessary for the husband’s agent, … Real Estate, E suburb, Mr R, to seek the consent of the wife in relation to same.
15.Paragraph 6(c) of the Order made on 21 October 2011 be varied to read as follows:
c) The husband do all acts and things to sign all documents necessary to effect the retention of the said agent, the engagement of appropriate conveyancer including but not limited to a lawyer including the husband’s lawyers, TJ Mulvany & Co, to undertake the conveyancing of the former matrimonial home for completion of all documents necessary to obtain a discharge of mortgage and of all necessary documents to complete the sale and IT IS REQUESTED that pursuant to Section 106A(2) of the Family Law Act 1975, a Registrar of this Registry of the Court be appointed to execute all such documents required to be executed on behalf of the wife for such purpose.
16.Paragraph 6(d) of the Order made on 21 October 2011 be varied to read as follows:-
d) Pursuant to Section 106A(2) of the Family Law Act 1975, a Registrar of this Registry of the Court be appointed to execute forthwith (and without proof of non-compliance by the wife) on behalf of the wife or on any documents which are necessary to effect a sale of the former matrimonial home on completion of the sale including but not limited to:-
i)The forms for engagement of the real estate agent;
ii)The vendor’s statement required pursuant to Section 32 of the Sale of Land Act 1962;
iii)The Section 27 Statement;
iv)The contract of sale;
v)The transfer of land;
vi)application to the mortgagee to prepare discharge of mortgage; and
vii)All other documents reasonably required to effect and complete a sale of the former matrimonial home and settlement of the discharge of mortgage.
17.That paragraph 7(b)(iii)(C) of the Order made on 21 October 2011 be discharged and replaced with the following:-
1. The balance of proceeds of sale of the former matrimonial home after compliance with paragraphs 7(b)(i) to (iii)(A) and (B) (all inclusive) shall be applied as follows:-
17.1As to $20,000.00 to the husband for payment of the husband’s credit card debt as at date of separation and IT IS HEREBY DIRECTED that the husband shall apply such amount for such purpose;
17.2To effect payment to the husband from the balance then remaining of such amount to ensure that, inclusive of the said sum of $100,000.00 paid to the husband pursuant to paragraph 7(b)(iii)B of the Order of 21 October 2011, and after deduction of the amount referred to in sub-paragraph 17.1 hereof, the husband is in receipt of sixty per centum of the net proceeds of sale of the former matrimonial home.;
17.3The sum of $15,500.00 to the solicitors for the husband such sum to be held on behalf of the wife, in interest bearing trust deposit, pending determination of the quantum of the wife’s liability for costs pursuant to paragraph 18 of this Order; and
17.4The balance then remaining, to the wife (for the avoidance of doubt, the wife shall receive allowing for and inclusive of the $100,000.00 referred to in sub-paragraph 7(iii)A of the Order of 21 October 2011, forty per centum of the net proceeds of sale of the former matrimonial home less the amounts referred to in sub-paragraphs 17.1 and 17.3 hereof.
18.That the wife pay and be responsible for eighty per centum of the husband’s costs, as follows:-
i.one half of the professional costs paid to Ms M and Dr D, in the total sum of $2,500;
ii.one half of the professional costs of Dr N in the sum of $1,175;
iii.the costs of and incidental to the hearings on:-
a.20 April 2011;
b.5 May 2011; and
c.13 July 2011; and
iv.The costs of and incidental to the husband’s application in a case filed 13 September 2011 save and except for the costs of the mention on 15 September 2011:
provided that the wife’s liability pursuant to this Order be capped at $15,500.00.
19.In the absence of an agreement in writing within 14 days as to the quantum of costs payable by the wife pursuant to the preceding paragraph of this Order, the issue of quantum of costs be referred to Registrars Sikiotis or Riddiford for assessment.
20.1Subject to the consent of XX Superannuation Trustee of the XX Superannuation Fund (“the fund”) the base amount to be allocated to the wife is $190,524.00 herein after called “the base amount”.
20.2Pursuant to Section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest of the husband in the fund the Trustee of the said fund shall:
20.2.1Pay to the wife, her administrators, executors, beneficiaries, heirs or assigns the amount or amounts which are calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, the base amount determined pursuant to sub-paragraph 20.1 hereof; and
20.2.2Make a corresponding reduction in the entitlement that the husband would have had but for these Orders.
20.3That such superannuation Orders shall have effect from the Operative Time.
20.4That the Operative Time for the purpose of these Orders is the fourth business day after the day upon which a sealed copy of these Orders is served upon the Trustee of the fund.
20.5The husband and the wife shall do all such things as are necessary including but not limited to exercising a request pursuant to regulations 7A 06(2) of the Superannuation Industry (Supervision) Regulations 1994 to roll over or transfer or benefits from the husband’s interest in the said Superannuation Fund to a complying fund of the wife’s choosing in accordance with Regulation 7A 12 of the Superannuation Industry (Supervision) Regulations Act 1994.
20.6That until the transfer and rolling over into the wife’s superannuation fund pursuant to the payment split by sub-paragraph 20.2.1 hereof, the husband be and is hereby restrained by himself his servants or agents from executing a Death Benefit Nomination in favour of any other person, or doing any such other act or thing which will render any part of his interest in the fund a “not splittable payment” within the meaning of Regulation 12 or Regulation 13 of the Family Law (Superannuation) Regulations 2001, and the Trustee of the fund shall give effect to this Order.
21.Unless specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:-
a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the former matrimonial home being deemed to be in the possession of the respondent husband);
b) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
c) Insurance policies remain the sole property of the beneficiary named therein;
d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
22.All documents produced in compliance with subpoena and all exhibits be returned to the person producing or tendering same after the expiration of the period in which a notice of appeal may be filed without leave.
23.Any party with possession of a Court Book surrender same to my Court Officer and, thereafter, all but two copies of the Court Book be destroyed.
24.My reasons for decision will be published subsequently and sent to the parties by pre-paid post.
25.The solicitors for the husband be responsible for service of a sealed copy of this Order on the proper officer of each school at which any of the children are enrolled as students.
26.Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
AND THE COURT NOTES that it is appropriate that the time within which a notice of appeal may be filed without leave not commence to run until two working days after the publication of my reasons.
IT IS NOTED that publication of this judgment under the pseudonym Mullen & Acken is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10068 of 2010
| Ms Mullen |
Applicant
And
| Mr Acken |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These proceedings concern an alteration of property interests between the husband and the wife and parenting orders concerning the children S Acken born in September 1998, E Acken born in March 2000 and T Acken born in December 2001
The final hearing was conducted in the absence of the wife. The oral evidence was brief and the case was contained within the day. The bulk of the evidence was in relation to the competing parenting applications the complexity of which belies the short duration of the final hearing. The husband and the independent children’s lawyer had a common position and sought essentially the same parenting orders. The property pool is modest and the issues are less contentious that those pertaining to the children.
I considered the matter and pronounced final orders on 23 November 2011 and said that I would deliver my reasons subsequently. These are those reasons.
The Act requires one pathway for financial matters and another very specific pathway for parenting matters. However, in this case there is not much overlap between evidence in relation to property and evidence in relation to parenting. Where there was, I have regard to the admissibility of the material as if the provisions of the Evidence Act1995 (Cth) apply.
Whereas all evidence was received together, these reasons will deal first with the parenting matters and then with the financial matters.
Procedural fairness has been accorded to the mother
The mother did not appear personally or by a representative at the final hearing. However, in circumstances that I will now discuss, I am satisfied that she is aware of the hearing, was given an appropriate opportunity to be heard and, in the result, has been accorded procedural fairness. However, I will describe in some detail the steps taken to accord the wife an opportunity to be heard from which it will be demonstrated the extent to which she elected not to participate.
On 13 July 2011 I pronounced orders and delivered reasons in relation to interim parenting issues. I also appointed the final hearing of this matter for 21 November 2011. That hearing date was not varied or postponed. The hearing was estimated to take eight to ten days. That decision is reported at Mullen & Acken (No. 2) [2011] FamCA 772.
It was also ordered on 13 July 2011 that the wife notify the husband and the independent children’s lawyer by 7 October 2011 of what, if any, part of her earlier affidavit evidence she relied upon. In particular, counsel for the husband foreshadowed objections being taken to most of a very lengthy affidavit of the wife sworn 24 March 2011 so the early notification date was intended to provide all parties with an adequate opportunity to consider his/her evidence and objections.
The parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Family Law Act1975 (Cth) (“the Act”) apply. Section 69ZT operates to exclude various divisions and chapters of the Evidence Act1995 (Cth) which deal with general rules about giving evidence[1], cross examination[2], documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. However, neither s 55 nor s 135 of the Evidence Act are excluded. Therefore it remains the case that:-
a)Only relevant evidence is admissible. Section 55 provides that relevant evidence is evidence which if it were accepted, could rationally affect (either directly of indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings; and
b)The court may exclude or limit the use of evidence which is relevant and thus admissible if the court is satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might:-
i)be unfairly prejudicial to a party[3]; or
ii)be misleading or confusing[4]; or
iii)cause or result in undue waste of time.[5]
[1] With the exception of ss 26, 30, 36 (s 69ZT(1)(a) of the Act refers).
[2] With the exception of s 41 relating to improper questions.
[3] Section 135(a) Evidence Act1995 (Cth)
[4] Section 135(b) Evidence Act1995 (Cth)
[5] Section 135(c) Evidence Act1995 (Cth)
The wife did not ever notify the other parties that she relied upon any earlier evidence which she had filed including any part of an affidavit filed by her on 24 March 2011 which runs to about 600 pages and comprises 53 pages of single spaced narrative in 281 paragraphs with the balance being made up of 47 separate annexures.
On 21 October 2011 certain other orders and directions were made to ready the matter for the hearing. They included the following:-
13)That otherwise, the matter remains listed for final hearing on 21 November 2011 at 10.00 am.
14)That the father file and serve an amended response by 4.00 pm on 18 October 2011 in which he seeks a splitting order in relation to his superannuation interest.
15)That by not later than 12 noon on 28 October, the husband and the wife each file and serve an up to date financial statement.
16)That the mother file and serve any evidence upon which she seeks to rely at the final hearing by 28 October 2011 NOTING THAT the wife is not at liberty to rely on documents already filed without leave of the Court.
17)That the husband file and serve any evidence upon which he proposes to rely at the final hearing by 12 noon on 7 November 2011.
18)That the affidavits to be sworn or affirmed by the husband and wife personally must be not more than 70 pages in length (including annexures) on A4 single sided pages size, in font not smaller than 12 point with lines no more closely spaced than 1.5 space and may not incorporate by reference any earlier or other documents filed in this proceeding.
19)That the independent children’s lawyer file any updated report by Dr [N] by 11 November 2011.
20)That by 15 November 2011 each party be at liberty to deliver to the Court, to my Court Officer, up to 100 A4 pages to be incorporated into a Court Book, noting that the documents will not automatically be admissible.
21)That any party who seeks to tender or to refer a witness (including himself or herself) to a document at the final hearing must have five (5) clean copies of that document to hand out in Court prior to, or contemporaneously with, the proposed tender or request that the witness have reference to it.
22)That each party file and serve:-
a)a case outline document about parenting matters, and
b)a case outline about financial matters; and
c)a list of documents relied upon by that party
as follows:-
i) the mother by 12.00 noon on 14 November 2011;
ii) the father by 12.00 noon on 15 November 2011;
and provide same to the email address [of Justice Bennett’s Associate [details omitted]].
The wife did not file or serve anything in compliance with those directions.
On 21 October 2011 I had handed down my decision and reasons on an interim application filed by the husband seeking, inter alia, that passports issue for the children and that the former matrimonial home be sold. That decision is reported at Mullen & Acken (No. 3) (Interim Property Settlement; Directions for Trial) [2011] FamCA 880 and I incorporate it into these reasons. The wife did not participate nor appear on the hearing of that application on 17 October 2011 or at judgment on 21 October 2011. The orders and reasons were sent to the mother at her address for service. At the trial on 21 November 2011, the husband identified extensive handwritten annotations to the Orders of 21 October 2011 as being those of the wife, and said such documents[6] had been recently sent to his lawyers by the wife. It is clear from the content of the annotations that the wife turned her mind to the content of the directions.
[6] Exhibit “H9”
By letter dated 15 July 2011 the Regional Registry Manager of this Registry of the Court wrote to the wife, in standard form, notifying her of the hearing fee which was due two weeks before the hearing[7]. The wife did not pay the hearing fee nor apply for a reduction in fees.
[7] Exhibit “C3”
In Orders made on 15 September, 14 October and 21 October 2011, it was specifically noted that “in the event a party fails or neglects to participate in the proceedings or to file any documents which he/she is required to file, the Court may proceed to determine finally the proceedings or any urgent applications arising therein (including any appropriate ex parte applications) without further input by the non-participating party and without further notice to them.”
One of the orders made on 21 October 2011 required the wife to sign documents to facilitate a sale of the former matrimonial home. Annexure “SVA10” to the husband’s trial affidavit affirmed 9 November 2011 is an email communication from the wife to the nominated estate agent in which the wife refers to “a hearing date on 28th November 2011 at which time all issues will be decided”. At the final hearing and in light of the wife failing to attend court, it was of concern to me that the wife may have thought, erroneously, that the hearing was one week hence. Accordingly, I required formal evidence in relation to service of documents and notification of the hearing date.
I also directed that an email be sent to the wife notifying her that the matter was listed for final hearing and that the matter would proceed in her absence. That was done at 10.57a.m.[8] No response was received from the wife.
[8] Exhibit “C1”
Mr Mulvany, solicitor for the husband, gave evidence that his client’s evidence and case outlines were served by email and by pre-paid post and that 21 November 2011 was the only hearing date contemplated or mentioned in all documents as the date of the trial. The covering letters or emails were tendered[9]. Mr Mulvany’s evidence was that nothing had been returned by post or electronically. In the letter dated 9 November 2011[10], the husband’s solicitor wrote, inter alia:-
Please be advised that Mr Bruno Kiernan of Counsel has been briefed to appear on behalf of our client at the final hearing.
[9]Exhibit “H3” is a letter dated 15 November 2011 from the husband’s solicitors to the wife and the independent children’s lawyer enclosing by way of service the husband’s outlines of case. Exhibit “H4” is a letter dated 9 November 2011 from the husband’s solicitors to the wife and the independent children’s lawyer enclosing by way of service the husband’s affidavit affirmed 9 November 2011. Exhibit “H5” is a letter dated 7 November 2011 from the husband’s solicitors to the wife and the independent children’s lawyer enclosing by way of service the affidavit of the husband’s girlfriend, Ms X, sworn 7 November 2011. Exhibit “H6” is a letter dated 8 November 2011 from the husband’s solicitors to the wife and the independent children’s lawyer enclosing by way of service the affidavit of the paternal grandmother sworn 3 November 2011.
[10]Exhibit “H4”
By email dated Thursday 17 November 2011 from the wife to Mr Z, Barristers’ Clerk[11], the wife wrote as follows:-
Dear [Mr Z],
Bruno Kiernan wont be needed for the [Acken/Mullen] 8-9 day trial (with Affidavit material prepared on behalf of [Acken] that extends to about 20 pages which includes [Acken] wanting to jump off a building in front of the kids and [Acken] punching a woman in front of the kids – and a new batch of meds – etc. etc. – yes that would be [Acken’s] material - not mine).
Thanks
[Ms Mullen]
The wife’s email was headed with the subject matter “Hearing 21st November 2011”.
[11]Exhibit “H8”
I am satisfied that the wife was aware of the final hearing but elected not to attend or to participate. I note that the wife did not participate at the hearing on 17 October 2011 which dealt with the significant issue of the sale of the former matrimonial home and an interim distribution of funds.
The husband and the independent children’s lawyer each sought that the matter proceed in the wife’s absence. Natural justice and procedural fairness require that all parties must be afforded an opportunity of appearing and presenting their case to the court. However, once afforded the opportunity to be heard in the adjudication of the dispute, a party is not compelled to avail themselves of the opportunity. I am satisfied that the wife eschews the opportunity to be heard in these proceedings in the knowledge that the trial would most likely proceed to adjudication without her. On this basis of the above matters, I was satisfied that there was no miscarriage of justice by proceeding to hear and determine the matter in the wife’s absence and I did so.
Evidence
The wife did not have any evidence before the court.
At the trial the respondent husband relied upon the following evidence:
a)His trial Affidavit, affirmed 9 November 2011;
b)His Statement of Financial Circumstances, affirmed 28 October 2011;
c)The Affidavit of Ms X, sworn 7 November 2011; and
d)The Affidavit of Ms A, sworn 3 November 2011.
The materials and evidence arranged by the independent children’s lawyer were as follows:-
a)The Affidavit of Ms M, affirmed 4 May 2011;
b)Report of Dr D, dated 15 May 2011;
c)Letter dated 14 June 2011 from Department of Human Services to the Associate to Federal Magistrate Connolly[12];
d)Child and Family Meeting Memorandum of Ms L, dated 17 June 2011;
e)Affidavit of Dr N, affirmed 2 September 2011; and
f)Affidavit of Ms L, affirmed 27 October 2011.
[12] Exhibit “ICL2”
In addition, there were numerous Exhibits.
I am satisfied that the wife has notice of all of the documents.
Proposals
I assume that the wife’s proposal is that the children be immediately returned to her primary care and live in northern Victorian nearby to her parents.
The proposal of the husband and the independent children’s lawyer is that the husband have sole parental responsibility, the children live with him, the wife be able to communicate with the children by card, letter or gift over which he has a right of veto. The wife is not to approach their schools or their residence and the husband keep the wife informed of significant decisions he makes for the children or significant medical issues which arise for any of them.
The outline of case filed and served by the independent children’s lawyer[13] was consistent with the above position as was the amended response and outline of case[14] filed on behalf of the husband. Based on the viva voce evidence of Mr Mulvany and Mr Piekarsky, I am satisfied that the amended response and case outlines were served on the wife in advance of the final hearing and that she has notice of the relief they seek.
[13] Exhibit “ICL1”
[14] Exhibit “H2”
Credit & impression of witnesses
The independent children’s lawyer required the husband for cross examination. As the husband and the independent children’s lawyer seek the same outcome, I did not permit leading questions.
This was the first time I had observed the husband speak at any length or explain himself. This is in juxtaposition to the wife whose presentation of her case, when she appeared before me, was not being filtered by legal representation. Counsel for the independent children’s lawyer asked the husband about his use of illicit drugs with particular reference to his disclosure to Dr D, psychiatrist, that he had tried some illicit drugs. The husband’s evidence was that he tried marijuana about 30 years ago but desisted when he appreciated the adverse mental health effects associated with his brothers’ more significant usage of the substance. The husband said he tried ecstasy about 15 years ago and, together with the marijuana, that represented the sum total of his experimentation. When pressed, the husband admitted that he had forgotten about the cocaine which he tried with work colleagues, in a bar in Fitzroy or Collingwood, late at night about fifteen or so months ago which, he said, was well before the girls came into his care. Adducing his evidence in this regard was like extracting teeth. He was vague, forgetful but, I observed, also prepared to make concessions. My impression was that the lack of recall was more likely due to him feeling swamped by the effort of participating in the final stage of these difficult proceedings rather than through dishonesty. I regard the fact that the husband revealed details of drug usage to Dr D as indicative of a reasonable degree of candour and a belief that he has little to hide. I regard his drug usage as unwise but not ongoing and not of a nature which represents any risk to the children.
Otherwise, the husband was a cooperative witness although he became frustrated at times. My impression is that he is a person who is disinclined to explain himself. In all, I considered the husband to be a truthful witness.
The husband did not require any of the independent children’s lawyer’s witnesses for cross examination.
I required the family consultant, Ms L, to give evidence on discrete issues.
I asked Ms L to comment on the joint proposal of the husband and the independent children’s lawyer. Her considered response was “I think that given the circumstances that they are in the best interest of the children at this time, they give some provision for the parents to make arrangements for the children to see their mother if [the father] feels that that’s appropriate” or words to that effect.
Ms L confirmed her view that the children miss their mother as she functioned and behaved prior to the breakdown of their parents’ relationship. That is, they remember her very fondly but are wary of how she has behaved over the last year. Ms L recognised that the children have been told that their mother is likely to have a mental illness which will not abate without treatment and opined that they are now accepting of the husband as the parent who can provide them with the best home environment at the moment. In her own words, or close thereto, Ms L opined:-
that the girls understand that the wife is not acting normally at the moment, is not functioning in a way that is emotionally safe for them, so whilst of course overall they miss their mother dearly and they would like to live with her ultimately they understand that that’s not possible at this time, nor is it the best environment for them.
When asked whether she could think of a resolution of this matter that is more constructive for the girls than the joint position of the husband and the independent children’s lawyer, Ms L said:-
at this point your Honour no, in the absence of [the mother] demonstrating some change, and that she is able to interact with the children in a way that is safe for them, and by safe emotionally and psychologically, […] the provision of anything greater than what’s been suggested [by the husband and the independent children’s lawyer] I think would be highly destructive to the children, in terms of their relationship with their father and their feeling stability in his care and more broadly their school community and their peer relationships as well.
Ms L’s oral evidence, when taken together with her children and parent issues assessment of 17 June 2011 and her family report of 27 October 2011, was compelling evidence which I will discuss below in more detail. She has been an impressive witness throughout the proceeding. I accept and give weight to her evidence.
Background
I have traversed the history of this matter in earlier reasons for decision, notably the interim parenting decision of 13 July 2011 and the interim property decision of 21 October 2011.
In brief, the husband is 45 years old. The wife is 43 years old. They met in 1991, commenced cohabitation in 1992 and married in November 1994. They separated on 3 March 2009 when the husband said he wanted to leave the marriage and the wife and children went to live in rented accommodation. The end of the marriage appears to have come as an enormous shock to the wife and, my impression is, has gone a long way to destabilising her. The husband has re-partnered with Ms X who is single, independent and without children. The relationship between the husband and Ms X predated the husband’s decision to end the marriage and the separation of the husband and the wife.
The husband’s evidence, which I accept, was that for most of the marriage the wife was an exemplary mother but that within the final few years of the marriage she began to act in an overbearing way to an extent that the husband came to be desperately unhappy in the relationship; an unhappiness which manifest itself in clinical depression.
After separation, the husband had misgivings about how much time the wife permitted him to spend with the children but still, it seems, saw them frequently and regularly. By November of 2010 the husband put a proposal through his lawyers that the mother retain primary care of the children and there be an alteration of property interests on certain terms. Almost immediately thereafter, the wife unilaterally removed the girls from school in Melbourne and relocated to northern Victoria. The husband promptly commenced proceedings to secure the return of the girls and after a period of shared care over the long summer school vacation, interim orders were made that the children reside with the husband and have regular weekend time with the mother. This outcome was consistent with a report prepared by Ms M, psychologist, dated January 2011 in which she expressed the following conclusions whilst indicating serious concerns about the wife’s presentation:-
52. Since the separation, the children have resided with [the mother] and spent substantial and frequent time with [the father]. The mother appears to have been the primary carer throughout the marriage and the children were of the brief that they would continue to live with their mother in [northern Victoria]. It was evident from my interviews with the children that they loved both parents. They ensured that they remained balanced in expressing their views and despite the conflict between the parents, none of the three children spoke negatively about either of them.
53. The children were aware of the dispute between the parents and they had been involved in much of the conflict since separation. The CD recordings of the interactions on 11 September and the telephone call on 24 September 2010, was of itself disturbing but if it is also representative of the parties’ communications and interactions in the presence of the children, as both parties indicated, then there is no doubt that the children will have been affected. The previous arrangement enabled the conflict to persist and the practical problems of the children moving between households were mentioned by each of the children. Not only were the children “annoyed” by the inconvenience of clothes being left at the other parent’s home but it also required frequent contact and fuelled significant conflict between the parties. There is nothing to indicate that the conflict would abate in the near future or that the parent’s behaviour would change. In these circumstances it would also strongly indicate that shared parenting would be inadvisable in this case.
54. [The father] was appropriately child focussed during the interview, was concerned about the children’s welfare and indicated a substantial knowledge about the children. Although he has not been the resident parent, he has had active involvement in their lives, activities and relationships. He appeared to be relatively stable and to have a good and close relationship with the children. Despite the occasional behavioural problems with [S], she maintains a good relationship with him. [S’s] comments about the difficulty of adjusting on return to live with her mother, given the close relationship with her, indicate that she enjoyed a relaxing time with her father and was free of obligations and conflict. [T] has a strongly positive relationship with her father and wants to live in close proximity to him. [E] also has a good relationship with him and was careful not to indicate preferences for either parent.
55. [The mother] portrayed her strong need to relocate and to be distant from her husband. While giving a range of reasons, there is no doubt that she would feel more supported by her family and given the degree of anxiety she has experienced since separation and, as she described, particularly in the past year, she may greatly benefit from that support. Given [the mother’s] anxiety and psychological state, I suggest that she needs a substantial period of time free from stressors in order to recover from her current functioning.
56. I have a number of concerns about [the mother’s] functioning and how it may have impacted on the children. I noted [the mother’s] high anxiety, shaking, reported loss of weight, disorderly thinking and the obsessive like nature of her discussion of [the father], her presentation at interview and the documents she was alleged to have produced. I am of the opinion that [the mother] is experiencing a high degree of stress and that it has most likely affected her reasoning and functioning. My concerns extend beyond what may be an adjustment disorder with additional symptoms of anxiety.
57. [The mother] has a highly negative view of the [father] and appears to communicate it to the children. She has discussed the matrimonial issues in the presence of the children and from comments made by the children as well as her reports of what the children tell her, she has few if any boundaries in what she discusses with them. I am of the opinion that she projects her anxieties onto the children and that she makes few distinctions about her needs and those of the children. The children have had to live as though these anxieties and perceptions are also theirs. If as alleged, she also asks [S] to find information for her and to continually report to her against her father, then she is behaving in a manner directly contrary to the children’s welfare and damaging the child’s perception of her role and her relationship with her father. [S], as well as the other children, have needed to become suspicious in order to voluntarily report back to their mother and if the children continue to be exposed to [the mother’s] perceptions, it is difficult to say as to whether they too may develop ideas of persecution.
58. The most concerning of the allegations in relation to the children, were those [the mother] described as “[S’s] sexual thoughts about her father” and the alleged “dreams about sex and her father”. If it is true that the child repeatedly reports her father’s alleged behaviour at bed time to her mother, I would suggest that this is most likely to be at the mother’s urging or caused by the mother’s need to have [S] report this and other issues. I am also significantly concerned about the genesis of these alleged “sexual” thoughts noting that the mother has been the only one to use this term. If this analysis is correct, then it is not unreasonable to consider [the mother’s] behaviour to be abusive and adversely affect [S], her relationship with her father and her future belief about her sexuality. [S] by both her own report and that of her father, has begun to self mutilate by cutting her hair. Although it is not extensive, [S] is only 12 years old and self mutilation can begin at this age and become established and more severe as a child progresses through adolescence. It is vital to change the circumstances for this child and to begin to put into place an environment better conducive to her well being.
59. [The mother’s] beliefs about [the father], including her belief that he is harassing and persecuting her by his own behaviour and through the children, and her need to return to his theme during the interview, was of further concern. It raises the question as to whether [the mother’s] conduct is sufficiently disturbing to warrant a referral to a psychiatrist for an assessment. [The father] denied the allegations of making harassing phone calls, causing the children to leave messages, causing others to call her or send her gifts. If the facts do not support her beliefs, then it is possible that [the mother] may be experiencing some form of persecutory ideation or paranoid thinking in association with or in addition to her anxiety. I recommend an assessment by a psychiatrist who would be in a position to undertake a full history.
60. The question of whether the children should remain living with [the mother] in [northern Victoria] has a number of considerations. My primary concern is [the mother’s] mental health status and the adverse impact she is having on the children at present. A return to the residence and care arrangements which existed prior to the mother’s relocation would be detrimental to [the mother] and the children. [The mother] would not have the support of her family, the conflict between the parties is likely to continue and the conditions which gave rise to [the mother’s] mental health status would persist. In these circumstances, the children would then continue to be in a situation of ongoing conflict between the parents and I would have similar concerns about their welfare.
61. I do not consider that it is in the children’s best interest at present to remain in the sole residence of the mother given my concerns for her current mental health and the impact of her behaviour on the children. Although the children reported that she has relaxed to some extent while they have been in [northern Victoria], they also reported her as being unavailable and persistently concerned with her court and other proceedings. My observation and assessment of [the mother] at interview indicated that her anxiety remains high, and her beliefs and disturbed thinking remain a concern. The claimed better conditions in [northern Victoria] had not had a noticeable effect on reducing these symptoms.
62. The children reported generally positive experiences of their schooling in [E suburb] and [T] and [E] would be returning to the same school, activities and friends. [S] commences secondary school this year and although she had an overly positive view of … Secondary School, I consider that her views parroted those of her mother and were intended to support the mother’s case. [S] is the child who is most affected by the parental conflict and by [the mother’s] conduct in particular. While this child wants to live with her mother, she feels a responsibility to support her. I am of the opinion that [S] has already been adversely affected by her mother’s behaviour: she feels a strong need to identify with her mother and to accept, accommodate and comply with her obsessional concerns. In some regards, [S] was also modelling her mother’s behaviour, mode of speech and grandiosity. Her absolute compliance with her mother’s view strongly suggested a need to appease her mother when she is in her care. All three children have had to live with their mother’s belief system and understanding of reality. The other two children have similarly been adversely affected by [the mother’s] behaviour and at present, I am of the view that there will be little change in the future.
63. [S] enjoyed her time with her father for nearly 3 weeks during summer: she seemed to relax, enjoyed life as a 12 year old and she reconnected with her friends. In residing with her father and in being away from the distorted reality of her mother’s perception without the burden of responsibility for her mother, [S] is likely to be able to live more freely.
64. None of the children envisaged living with their father and they had been lead to believe that they would be remaining in [northern Victoria]. Should the children live with [the father], it is likely that they would need some time to adjust and perhaps some assistance to assuage them of any responsibility for the change. [The father] is a sensitive parent who remained child focussed and did not denigrate the children’s mother to the children. I would feel confident that he would assist the children in their transition and obtain psychological assistance if he so requires. Their transition to living with him is assisted by their recent stay of nearly three weeks with their father. [The father] had already given consideration to sending [S] to a psychologist. I recommend that [S] be referred to a psychologist to assist her to manage her parents’ expectations and to assist her to differentiate her needs from those of her parents.
65. [The father] is in a position to be able to care for the children as the resident parent. From his account, he is able to change his work hours and responsibilities to ensure that he is available for the children. He would also have additional support from the maternal grandmother and his girlfriend should he require it. The children, [T] and [E], would be able to return to their schools, extra-curricular activities and social circle. [S] would be at [E] secondary school, as had been originally planned by the parties, and she would continue to enjoy her friendships in the area and those who will also be attending the same school.
66. I recommend that the three children forthwith live with [the father] in Melbourne and that they be enrolled in the relevant [E] schools. The children should spend time with their mother for weekends either on alternate weekends or every three weeks.
67. [The mother] should be restrained from discussing any aspects of the matrimonial dispute or these or other proceedings. I suggest that she be counselled about the meaning of any Order to that effect. If practicable, [the mother] should attend a post-separation parenting course.
68. I recommend that [S] be referred to a psychologist as soon as practicable, that the psychological sessions are confidential and solely for therapeutic purposes without reporting to the Court and that neither parent is involved in the therapeutic process. I further recommend that [the father] have sole parental responsibility for this function. I suggest that the psychologist be provided with a copy of this report.
69. I recommend that [the mother] be referred to a psychiatrist for assessment and I suggest that the psychiatrist be provided with a copy of this report.
Ms M’s evidence was not challenged at the final hearing. I note that at earlier court events the wife has referred to Ms M and her report with scathing disapproval. If the wife sought to challenge the expertise of Ms M or her opinions, this final hearing was the forum at which to do so. However, the wife did not participate. Ms M’s report seems well reasoned. Her description of the wife’s speech pattern, shakiness and hand wringing is consistent with my own observations of the wife. I accept the evidence of Ms M.
On 20 December 2011 the matter had been listed before Connolly FM and both parents were represented, the wife by Mr Crozier-Durham of counsel. Orders were made which provided that, if Ms M recommended that either or both of the parents attend for a psychiatric assessment then he/she would cooperate with such an assessment. As it happened, Ms M’s recommendation for a mental health assessment pertained only to the wife but the husband agreed to attend as well.
The husband attended upon Dr D who published an assessment[15] in which he did not express any concern about the husband’s mental health. His opinion was summarised in the following terms:-
[15]Report of Dr D dated 15 May 2011.
Opinions and Recommendations
[The father] is a 44 year-old man who presented as mentally stable and well in this assessment. His mental state was unremarkable.
[The father] had difficulties in this childhood in the context of his father being alcohol dependent. He lacked a meaningful bond with his father throughout his early life, but he had fostered an improved relationship since his father acquired the role of grandfather.
[The father’s] brother [W] had a history of sexual deviancy. [The father] elected to disassociate himself from [his brother] in light of his sexual deviant history, and potential risky behaviour with his children. [The father] confirmed that he had prevented any contact between his children and [W] over the last eight years.
[The father] has a history of shyness, social anxiety and associated lowered self-esteem. These difficulties were most prominent in his childhood and adolescence, compared with his adulthood. However, he remains a man who is comfortable with minimal social company. His self-esteem improved as he developed a successful … career.
[The father] also experienced symptoms of depression throughout his adulthood, yet it was not formally diagnosed until after [T] was born. As described in the body of the report, he had not recognised that he was suffering depression. He eventually responded well to antidepressant medication. He remains of (sic) treatment, and he is currently devoid of any significant depressive symptoms.
[The father] conceded that depression had contributed to problems emerging in his relationship with [the mother]. His mood was often irritable, and he was likely quite difficult to get along with.
[The father] has a history of alcohol misuse. He has always been a drinker, but his GP recommended a substantial reduction eighteen months ago. He has responded to advice, and he had recently limited consumption to Fridays and weekends. He did not consider alcohol to contribute to any functional impairment. His alcohol consumption will require ongoing review with his GP.
[The father] has experimented with illicit drugs. He denied forming a habitual pattern of use. He said he had ceased using drugs as it contributed to a depressed mood afterwards.
[The father] admitted that he was deeply in love with [the mother], and the feelings were generally maintained until [the mother] became pregnant with [T]. He accepted that his depression contributed to aspects of the relationship’s problems, but he also wondered if [the mother] was similarly depressed. He endeavoured to maintain the marriage particularly for the children’ best interests. There appears to have been mutual ambivalence in separation. [The father] accepted that he was not necessarily the most compatible partner for [the mother] as he was a social recluse, and he was not as supportive as he could have been with [the mother’s] charity work.
[The father] admitted being unfaithful with his partner [Ms X] prior to the marriage officially ending. He didn’t accept that this was a significant contributing factor to the relationship’s demise.
[The father] expressed genuine concern for [the mother’s] mental wellbeing. He broadly denied engaging in harassing and stalking behaviour, as alleged by [the mother]. He dismissed the allegations as ridiculous, baseless and suggestive of a paranoid state. He expressed concern that the children had learnt about the allegations from [the mother], leaving them in a compromised position not knowing who to believe. His concerns seemed very reasonable.
[The father] had been comfortable with the contact arrangements prior to [the mother] moving to [northern Victoria]. He indicated that he was hoping to restore a relationship between the children and [the mother], but he was worried about [the mother’s] mental wellbeing.
[The father] was not critical of [the mother], other than her choosing to take the children unannounced to [northern Victoria] during the end of the school year.
[The father] impressed as being appropriately child-focused, and concerned that [the mother] required professional support in order to restore her mental well-being. He indicated that he was hoping that they could re-establish a workable relationship such that the children could experience quality parenting from both parents.
I could not identify anything to suggest [the father] was not capable of effectively parenting the children. Whilst it is still a little alarming that he had previously engaged in grabbing a child in defence of his daughter, this does not appear to be representative of a pattern of behaviour, and he expressed genuine remorse for his actions.
The wife refused to abide the order that she attend for assessment with Dr D notwithstanding that on 31 January 2011 the wife had been represented by Mr Hebblewhite of Counsel and, by paragraph six of the order made that day, consented to attending upon Dr D for the purpose of a psychiatric assessment.
As a consequence of the mother refusing to attend the nominated psychiatrist, there has been no psychiatric assessment of the wife at all.
The matter then came before Federal Magistrate Connolly in early May 2011. His Honour ordered that the wife have only supervised time with the girls and transferred the proceedings to this court. The matter was taken into my docket on the same day. The mother, who has always been self represented before me, said she would not accept supervised time with the girls the consequence of which was that the girls would not be spending time with the wife at all. Finally, by agreement, I made orders which provided for telephone communication between the wife and the girls twice weekly. I expressly permitted the conversations to be recorded, for the purpose of being available to be used in evidence, providing that the girls were not aware of the recording. I also considered that the parties’ consciousness of the recording might promote some self restraint.
On this first day of hearing before me, I indicated to the wife that I would not compel her to submit to a psychiatric assessment but that she should consider the possible damage to her case if she elected not to do so. In particular, that ultimately both parents would be at least partially judged on his/her behaviour. If subsequently I found that her behaviour was concerning or dangerous to the children, a psychiatric evaluation might go some way to explaining that behaviour and, depending on the prognosis and willingness to accept treatment, satisfy me that the behaviour would abate or be unlikely to occur again. Furthermore, there was the possibility that the assessment would be returned indicating that nothing was wrong with the mother’s mental health in which case the issues in the case would be narrowed.
The twice weekly telephone communication did not work well. At a hearing on 13 July, I discharged the provision for telephone communication which left the wife without any direct means of contacting or communicating with the girls or them with her. My reasons for so doing appeared under case neutral citation Mullen v Acken (No. 2) [2011] FamCA 772. I incorporate those reasons into these reasons.
The evidence before the court included the family consultant, Ms L, giving evidence of a supervised meeting between the wife and the girls on 11 July 2011 as being harrowing for the girls with the maternal grandmother standing by and failing to intervene to protect anyone, least of all the children, from the wife’s intemperate behaviour. During the visit, but not in the presence of the girls, the wife called Ms L a “child abusing corrupt bitch” and a senior family consultant, Ms H, a “child abuser”.
Save for an incident on 4 October 2011 in which the wife gained unauthorised entry to the former matrimonial home and saw two of the girls and another incident in which a friend of the wife’s handed the one of the girls a telephone in the street and invited her to talk to her mother, the wife has not had face to face contact or telephone communication with the girls since 11 July 2011 or thereabouts.
Also pursuant to the Order on 13 July 2011, the husband engaged Dr N to see himself and the children. The wife was also invited to attend upon Dr N but ultimately refused to participate. By letter dated 21 September 2011[16] Dr N provided a history of her dealings with the family, the behaviour of the wife vis a vis Dr N and her recommendation that the children not be exposed to the wife without the wife first undergoing a thorough psychiatric assessment. A full extract of Dr N’s report is as follows:-
[16]Annexure “A” to the affidavit of Dr N affirmed on 21 September 2011.
I wrote in my letter [to the independent children’s lawyer] dated 2 August 2011 of my recommendations that rather than have separate counselling for the children it would be better to address the problems in the family with family therapy. I had advised you previously that in seeing the children I would be obligated to call their mother and inform her of this. This is certainly not necessary but follows the highest ethical standards and is my usual practice.
I had one telephone discussion (on 20 July 2011) with [the mother] informing her that I would be seeing the children. [The mother] then went into what can only be described as an uncontrolled rant in which she made various allegations about [the father] and pejorative remarks to me (e.g. “be professional - read the file”).
I then received an avalanche of emails from [the mother] (attached in Appendix A but they do not include the numerous long attachments relating to her rebuttal of legal documents). The emails were sent often daily and sometimes a number of emails in one day with some directed to me and some to others in which I had been copied in. She has called my office too and left messages for me to call her.
I then wrote to [the mother] (letter dated 9 August 2011 in Appendix B) telling her that I would not respond to by email or telephone but that I would offer her a chance to discuss her concerns. I made an appointment for her on 1 September 2011 and set out my terms. I had hoped that she might find some motivation from not seeing the children to begin looking at ways in which she might be able to do so in the future.
In her subsequent emails, [the mother] makes a variety of allegations about me, my professional practice, threats to have complain and have me deregistered (email dated 5 September 2011) and some blatantly false claims such as that I refused to meet her (email dated 31 august 2011, notably the day before the scheduled appointment) and I had never spoken to her by telephone (email dated 17 August 2011). Frequently she purports to quote me but seems to confuse me with other people as the quotations she uses do not come from me and the only communication I have had with her directly are a single telephone call with her in which I said very little, two brief letters to her (Appendix B and C) and my letter addressed to the Independent Children’s Lawyer (dated 5 September attached in Appendix D). Frequently [the mother] makes assertions which are meaningless to me but seem from her confusion of me with other people.
In her emails, [the mother] makes many contradictory assertions (sometimes in one email), such as that I have been given documents and then that I have not been given documents in order to then make aspersions about Victoria Legal Aid practice.
In one email, dated 29 August 2011, [the mother] suggests that I am exploiting the murder of a child in another case I have been involved in. I have never mentioned that case or any of my other cases to [the mother], or indeed [the father], at any time.
She frequently makes pejorative comments as “Every other psychologist I have spoken to regarding this matter is truly appalled and outraged by your conduct. You abuse children Ms [N]” (email dated 5 September 2011).
Through this email communication from [the mother], I saw the children with their father and stepmother and assisted the children to think about and resolve some of the uncertainties in their lives such as they told me that [the mother] had promised at various times over 2011 that they would shortly be returning to her care. [S] in particular seemed to be unsettled by this and that it had affected her ability to integrate into secondary school.
[E] and [T] discussed their confusion and disquiet about their last meeting with their mother at the Court and how her behaviour had been frightening and disturbing to them.
[S] was also struggling with some of the ideas, information and allegations that she said her mother had shared with her.
All the children have recounted memories and experiences with their mother in the past when they felt she was ‘talking funny’ ([T’s] words) and this had scared them and made them feel unsafe.
[The mother] continued sending emails to me in which her content and tone swung between cajoling, threats, autocratic demands and confused arguments.
[The mother] then demanded in an email that I answer whether the children would be present at the appointment planned for 1 September 2011 despite court orders that preclude this (Orders dated 13 July 2011).
I responded to [the mother] by mail telling her the children would not be present (letter dated 29 August 2011 in Appendix C). [The mother] then did not attend the appointment with me scheduled for 1 September 2011.
I responded to [the mother] by mail telling her the children would not be present (letter dated 29 August 2011 in Appendix C). [The mother], in an email dated 31 August 2011, categorised my letter as “extraordinarly (sic) juvenile”. [The mother] then did not attend the appointment with me scheduled for 1 September 2011.
All the information available to me, from my telephone call with her, [the mother’s] emails to me and others, [the mother’s] thinking and behaviour around the proposed appointment, the children’s descriptions of their mother’s behaviour all suggest that she is showing signs of psychosis.
The catastrophic disruption of thinking that is a feature of psychosis is often clearly seen in an individual’s written material and [the mother’s] documents and emails seem to show evidence of confusion, paranoid and delusional ideation and thought disorder.
It is my assessment that the children want to see their mother, [S] most of all, as [E] and [T] appear to be a little intimidated by their mother’s recent behaviour. I would caution about any planned meeting between the children and their mother as the last occasion scared the younger ones very much.
If [the mother] is psychotic then this is likely to only cause problems for the children and they are likely to be worried and disturbed by her behaviour. In short, they want their mother but do not want to see her when she is not acting like their mother. Obviously, if [the mother] is showing paranoid and delusional ideation this is not good for the children to be exposed to this. Children expect their parents to be honest with them and interpret the world for them. If [the mother’s] beliefs and thinking are distorted by mental illness, this is likely to confuse and disturb them.
I consider that [the mother] requires a thorough assessment before any plans for contact with the children in any form. The emotional risks for the children at the moment in not seeing their mother are considerable, but if she is psychotic then the risks are so much greater for their emotional and psychological health.
It would be my recommendation that any assessment of [the mother’s] mental state is undertaken by a psychiatrist but if she agrees to see me and, importantly, will cooperate with a clinical interview assessment and psychometric testing, I could then make an assessment of whether it is appropriate for the children to see her or if she could be included in the therapy.
Dr N’s report was copied to the wife and to Mr Mulvany for the husband. I am satisfied that, upon reading the report, the wife should have recognised a number of points including (but not limited to) that the children want to see her, that E and T were scared by her behaviour when they saw the her with the family consultants on 11 July 2011. Most significantly, that the body of expert psychological and social science evidence was stacking up against her.
The interviews for the family report were scheduled for 5 October 2011. On 4 October 2011 the mother had attended at the former matrimonial home and, according to the evidence of Ms X[17], assaulted Ms X and spoke to the children leaving them shaken and crying. Ms X’s evidence was not challenged at the hearing. I accept it. I also accept the husband’s evidence including that the wife attended the former matrimonial home in the knowledge that he would not be present and that Ms X alone was looking after the girls. I am satisfied that the wife’s intrusion was a traumatic incident for E, T and Ms X.
[17] Affidavit of Ms X sworn 7 November 2011
Following the incident at the former matrimonial home the husband’s solicitor received an email from the wife.
The husband deposed that, later on the morning of 4 October 2011, he received a copy email transmission from the wife to his solicitor, Mr Timothy Mulvany[18]. The email is dated Tuesday 4 October 2011 at 11.14 a.m. It reads as follows:-
[18] Annexure “SVA7” to the husband’s affidavit affirmed 9 November 2011
Just to confirm [the father] is at work. I am on holidays. I went to see my daughters – as not to see them would be to collude the abuse of my daughters by you.
[Ms X] was there. My daughters had no idea about seeing their Mother tomorrow at all. None. Therefore, with the confiscation of my letters – you wish for them to think that their mother is dead – which is sadistic and illegal. Otherwise – why were they deliberately not told?
[Mr G’s] daughter called the Police who have been corrupted by [A Judge] – son of … – brother of …. As I have written and spoken to so many – the children are only there – as [A Judge] would love nothing more than to arrange for me to be put into the back of a divisional van and to have her sadistic ex-husband and children watch this. Because he is a coward. And today is the proof. Police – Guards – Magistrates – Lawyers – and nothing has changed – nothing at all.
Cowards, child abusers, sadists. The Orders have no legal standing whatsoever, and once again are not being followed by the father – therefore – more proof that this is a kidnapping and the appointment with Ms [L] tomorrow is nothing more that the sadistic abuse of their Mother at the Court. The house was filthy.
You will live with this for the rest of your lives. History Departments know (think Jack Mundey and the mysterious disappearance of the woman in that story) – journalists know – Priests know – and hundreds of others know. My daughters will not be sacrificed for nothing – as [Mr G] wishes to sacrifice his. I have never regretted one moment of my life. Not one. I was the faithful wife – a beautiful Mother – a good employee – a person who believed in justice. A person who believes that to swear or write false Affidavit is an absolute wrong. A person who could never be unkind to a child. Never. Two suicides happened in my life which is the only reason my sadistic ex-husband could control me. But to think that I am a weak person – is wrong.
Those men – the unknown soldiers – did not die for this. They fought against sadists. They were not cowards. They would be ashamed of you all.
“What you do to the least of my children you do to me”.
You damage them willingly as no other girls have been damaged – and if they are killed – you will have murdered them. “And Vincent went round softly speaking his story” and he always will. “Let the Stars Keep on Turning.”
[Ms Mullen].
The husband deposes[19] that the “contents of the email were of grave concern to me as to the welfare of the girls and indeed the welfare of the [mother]”. I accept that as a reasonable position for the husband to have taken.
[19] Husband’s affidavit affirmed 9 November [12.2]
The wife did not attend the family consultant’s assessment interview which was scheduled for the next day, 5 October 2011.
In spite of having stated that she opposed the husband’s interim application, the wife did not attend the hearing on 17 October 2011 about interim financial matters (sale of the family home) and the facilitation of the husband’s proposed holiday with the girls in Europe.
The family report was published on 27 October 2011. The family consultant, Ms L, made the following evaluation:-
40.The circumstances that have led to the current parenting arrangements (i.e. that the children have no communication with their mother) are unfortunate to say the least. The children miss their mother and continue to express their desire to, ultimately, live with her. However, it would appear that there have been benefits to the children from having no direct communication with their mother over the past three months. This is not to minimise the significant impact [the mother’s] absence from the children’s lives may be having on them, however the deleterious affects of [the mother’s] behaviour, as was observed in her interactions with the children, are being progressively minimised.
41The children’s current presentation indicates that they have developed more confidence in their father and his ability to parent them. Their narrative about [the father] is no longer negative and there is no sense that they are scrutinising his behaviour, as seemed to be a requirement when they were communicating with their mother. The children appear to have developed a more neutral and realistic understanding of their father as an effective parent, as their mother’s previously stated beliefs about [the father] as ineffectual and abusive are challenged each day by [the father’s] positive parenting of them. The children also appear to be in the process of developing a realistic understanding of their mother’s current behaviour, which they can now articulate as unusual and scary and they can separate this behaviour from their mother’s ‘normal’ presentation prior to the parental separation.
42.From the children’s perspective, it is hoped that [the mother] will attend to the issues currently preventing her from spending time with the children. [The children] each miss their mother and it is a significant loss to each of them that their mother is absent from their lives.
43.In regard to the history of the difficulties being experienced by [the mother], she makes numerous allegations regarding [the father’s] abusive and threatening behaviour following their separation and provides this as her primary reason for relocating with the children to [northern Victoria]. Her affidavit material expresses her continued concern that [the father] is abusive toward the children and therefore poses a significant risk to them.
44.It remains unclear whether [the mother’s] allegations are based on her lived experiences of [the father] or whether her beliefs about him as abusive have their origin within her seemingly paranoid view of his behaviour and intentions and the dispute at large. There does not appear to be any supporting evidence that [the father] has or does pose a risk to [the mother] and/or the children however, the allegations may need to be tested by the Court. If it is found that there is some validity to [the mother’s] allegations, this may go some way in explaining her attempts to protect herself and the children by relocating to [northern Victoria] and her current distress at the children’s living arrangements.
45.However, irrespective of the origin of [the mother’s] current presentation, her behaviour is damaging to the children. [The mother’s] decision not to participate in the therapeutic process with Ms [N], refusal to undertake a psychiatric assessment or engage in psychiatric treatment, or to participate in the family report assessment, indicates that [the mother] has limited, if any, insight into the possibility that her perception of events may be anything other than reality based.
46.It has been noted by Ms [M] in her family report and by Dr [N] in her letter to the ICL dated 21 September 2011 that [the mother] presents with anxiety, disordered thinking, confusion, paranoia, delusional ideation and a general presentation that may indicate psychosis. In the absence of a psychiatric assessment there can be no clarity as to whether [the mother] would meet the criteria for a diagnosis of a psychiatric illness or to the longer prognosis.
47.It is somewhat baffling that [the mother’s] extended family has been unable to recognise that [the mother] may benefit from engaging with the professionals involved in these proceedings and have seemingly not supported her in accessing appropriate assistance to address behaviours which are preventing her from having a relationship with the children. This is particularly the case given the reported family history of mental illness. It could be reasonably anticipated that if [the mother] engaged in and responded to appropriate treatment, consideration could then be given to the children reconnecting with their mother. Given [the mother’s] lack of insight into the nature of her presenting behaviours, some responsibility for assisting her to access treatment must rest with her family, who seem best placed to facilitate her engagement with an appropriate professional.
48.There have been numerous examples of [the mother] being unable to focus on the children and their needs. This was observed directly by the writer and has been noted historically by [Mrs Y] and more recently by Ms [X] in their observations of [the mother’s] interactions with the children. [The mother] is so consumed by the dispute that she is unable to protect the children from being exposed to her distress and anger and her views regarding [the father], Ms [X] and the professionals that have been involved with the children. It would appear that [the mother] began experiencing difficulties in prioritising the children’s needs from soon after the separation, which indicates that the children were in a position of having to ‘manage’ themselves for a significant period of time. This would go some way in explaining [S’s] adoption of a parenting role toward her younger siblings
49.There do not appear to be any indicators at present that the children would be able to emotionally or psychologically manage a reconnection with their mother. Nor is there any indication that [the mother] has addressed any of the previously identified concerns in order to be able to spend time with the children. In fact, [the mother’s] alleged recent behaviours and written communications could be viewed as an escalation (or deterioration) in her actions and behaviour. This was demonstrated by her attendance at the children’s home and her alleged assault of Ms [X] in the presence of the children, by which they were significantly distressed. [The mother’s] actions demonstrated her inability to regulate her behaviour despite the children’s distress.
50.Although the children have gained insight into the reasons that have led to the current circumstances, can now name and identify their mother’s behaviour and to separate this from their mother’s ‘normal’ presentation, they do not yet possess the ability to appropriately emotionally process their mother’s behaviour or to protect themselves from [the mother’s] attempts to undermine their sense of stability in their father’s primary care. The strength of [the mother’s] convictions, her lack of insight and her inability to contain her behaviour continues to pose a significant risk to the children’s wellbeing. It is anticipated that the children’s sense of stability in their father’s care, which is of utmost importance following the significant disruption they have experienced in the previous year and a half, would be compromised by any direct communication with their mother.
51.The children appear to have settled in their father’s care and now have a sense of stability, afforded them by their increased understanding of the reasons for the change to their primary care arrangements. Whilst they continue to express a genuine desire to live with their mother, they appear to have developed an understanding that their mother is unable to provide them with, to use [S’s] words, the best environment, at this time. Ms [X] was assessed to be child focused and cognisant of the girls’ experience and sensitive in her approach to managing the children’s experience of guilt and disloyalty toward their mother and a similarly sensitive and supportive role toward [the father].
52.[The father’s] presentation is indicative of significant growth in his role as parent to [the children]. He appears to have gained confidence in this role and is now parenting in the absence of fear of what he viewed as unjustified criticism and allegations by [the mother]. These gains appear to have been made through the passage of time, greater certainty about the children’s living arrangements, and also through the more transparent communication he now shares with the children, developed through the therapeutic process with Ms [N]. [The father] needs to be supported in his role as the children’s primary carer at this time. His ability to fulfil this role successfully will likely be once again compromised should [the mother] resume direct communication with the children, if she were to continue in her attempts to undermine [the father] and to align the children against him.
53.[The father] has acknowledged a history of depression for which he has sought treatment. [The father] does not report, nor does he present, with symptoms of depression of a nature that would impact on his capacity to parent the three children. [The father] demonstrated a good level of insight into his depression, including an awareness of early warning signs and appropriate management strategies. [The father] is encouraged to monitor his mental health and to engage in treatment as necessary in order to ensure his ongoing availability to the children.
Ms L’s evidence was not challenged at the final hearing. It is sensible and well reasoned. I accept it as expert evidence and give it weight. Furthermore, I take into account that the wife has had an opportunity to read and consider it including, but not limited to, the content which makes clear that the children long to see her providing that she can behave appropriately and wish ultimately to return to live with her. As indicated above, I accept and give weight to Ms L’s evidence.
Proof and findings of fact
In assessing the evidence, I apply the balance of probabilities as the standard of proof.
Statements of fact are findings of fact.
Relevant law – parenting issues
These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to S, E and T, I must regard S, E and T’s best interests as the paramount consideration.
Subject to the best interests of the child being the paramount consideration,
s 60B sets out the aims and principles of Part VII. Section 60B defines the objects of Part VII as to ‘ensure that the best interests of the children are met’ by:-
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The objects may be regarded as the core values of the legislation. Sub-section 60B(1)(a) of the Act has particular relevance in these proceedings. It emphasises that the involvement of both parents in the child’s life should be meaningful as to its quality and to the maximum regularity and frequency permitted by the child’s best interests.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:-
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration.
Determining the child’s best interests
In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in
s 60CC of the Act.
The primary considerations
The primary considerations echo the first two objects set out in s 60B of the Act. The primary considerations are set out in s 60CC(2) and are described as follows:-
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
This is a case where both of the primary considerations are relevant.
The benefit of a meaningful relationship as a primary consideration
I interpret s 60CC(2)(a) of the Act as requiring an evaluation of the nature and quality of the relationship between the parent and the children by reference to such additional considerations as are listed in the legislation and are relevant. The primary consideration is not a statement of principle. It requires the court to undertake a prospective enquiry. Accordingly, I will evaluate the extent to which a meaningful or significant relationship with both parents is going to be beneficial and of advantage to the children now into the future.
The husband and the independent children’s lawyer contend that, all things being equal, it is important and desirable for the children to see the wife. However, at the moment, the risks which the wife’s behaviour and attitudes pose to the children’s emotional and psychological health and ability to exist peacefully in the husband’s home, outweigh the benefit associated with the children seeing the wife regularly, frequently or at all. The position of the husband and the independent children’s lawyer finds strong support in the expert opinion of the designated family consultant, Ms L.
Protection from harm – as a primary consideration
The second of the primary considerations mirrors s 60B(b) of the Act and imposes a duty on the court to make orders which, to the extent which it may be necessary to do so, make orders which protect the children from physical or psychological harm, including being exposed or subjected to abuse, neglect or family violence.
This factor also requires a prospective evaluation. As such, I must assess the future risk of exposure by the children to physical or psychological harm and formulate orders which protect them from that harm.
The independent children’s lawyer and the father contend that the wife’s behaviour represents a real risk to the girls’ emotional health and psychological wellbeing. Their contention appears to be supported by the evidence of all experts to date who have seen the children and/or the wife. By contrast, the wife’s position is that the children are being abused by the husband and those associated with him as well as by the family consultants and the court. There is no evidence, expert or otherwise, adduced by the wife or anyone else to support this proposition.
Treatment of the additional considerations
The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. It is only necessary to consider those which are relevant to this case. The additional considerations provide useful vantage points from which to undertake the assessments mandated by s 60CC. I will have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, securing for the children the benefit that may flow from having a meaningful relationship with both parents and ensuring that they are is protected from harm and exposure to abuse, neglect or family violence. Finally s 60CC(3)(m) of the Act requires me to take into account ‘any other fact or circumstance that the court thinks is relevant’. This ensures that the infinite variety of individual children’s circumstances can be addressed[20].
The child’s views[21]
[20]B and B: Family Law Reform Act (1997) FLC 92-755.
[21]Section 60CC(3)(a) Family Law Act 1975 (Cth).
In determining what is in the child’s best interests the Court must consider, amongst other factors, any views expressed by the child and any other factors that the Court thinks are relevant to the weight to be accorded to the child’s views.
The court may inform itself of views expressed by children by having regard to anything contained in a report given to the Court by a family consultant[22] or other expert or appropriately qualified person retained by the parties or through the independent children’s lawyer.[23]
[22]Sections 60CD(2)(a), 62G(2) and 62G(3A) Family Law Act 1975 (Cth), the last provision of which generally requires the person giving the report to ascertain the child’s views and include them in the report.
[23]Sections 60CD(2)(b), 62G(2) and 68LA(5)(b) Family Law Act 1975 (Cth), the last provision of which requires an independent children’s lawyer to ensure that the child’s views are put before the court.
Once a child’s views are ascertained, the next step in interpretation and assessment of these views requires a balancing of the views against all of the other considerations relevant to the child’s welfare. Children’s views are instructive but are rarely determinative.
Both Dr N and the designated family consultant, Ms L, accept the children’s views are that they miss they wife and wish that she behaving rationally so that they could be reunited with her. I accept that is correct. Unfortunately, on the evidence currently before me, it is not attainable.
Ms L records the thirteen year old S’s position as follows:-
36.[S] expressed some doubt about when her mother may be well enough to spend time with her, [E] and [T]. She described Dr [N’s] hope for [the mother] to join the children, [the father] and Ms [X] in a joint intervention as a “long shot”, stating that, “it depends on if mum gets help, it would be hard for mum to have a mental illness and communicate effectively and for dad and [Ms X] to be open minded and give mum a second chance”. [S] reported that she has felt some frustration toward her mother for what she perceives as her mother not taking the necessary steps to be able to spend time with them. She stated, “all she has to do is get up and make an appointment”. She has explored this issue with her psychologist and has come to understand that it is perhaps not as simple as this. Irrespective, [S] “was very frustrated for a while”.
The property is as follows:-
(i)Former matrimonial home at B
current market value at approximately $525,000
Less maximum allowance to prepare
property for sale, set by paragraph 7(a)
of the Order 21 October 2011 ($5,000)
Less mortgage at approximately at ($170,532)
Less approximate selling costs at ($15,000)
Indicative net value of home $334,468
(ii)Credit card liabilities at separation ($20,000)
_______
Total property (non-superannuation) $314,468
In relation to superannuation, the husband contended that I ought to split the difference between a valuation of his superannuation interests obtained at separation and the value obtained at 30 June 2011 in order to recognise that since January 2011 the husband has been contributing to his superannuation interests as well as being the sole financial support for the children. I will not do so. I will operate on the most current valuation there is of each superannuation interest and take into account disparate contributions at the second stage to the extent that I can.
I do not have any up to date evidence of the value of the wife’s superannuation interest. The husband invites me to rely on the wife’s most recently, and only, financial statement sworn 19 November 2010[61] which details her interest in four funds. I will do so.
(i)Wife’s superannuation $19,326
(ii)Husband’s superannuation $505,321
Total Superannuation $524,647
[61]Wife’s financial statement sworn 19 November 2010, Part J, Item 45
Accordingly, the total pool of assets divisible between the husband and the wife is approximately $839,115. It is merely approximate because the net proceeds of sale of the former matrimonial home will not be known until after it is sold
Section 79(4)(a) to (c)
The next step in the exercise under section 79, is an assessment of the parties’ contributions within the context of section 79(4)(a) to (c). These provisions are as follows:
Section 79(4)
In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
It is also relevant when considering contributions that I consider when the contributions were made.
The parties commenced living together in 1992 by which time the husband had been contributing to his superannuation for about two years. There is no evidence as to the value of the husband’s superannuation entitlement when the parties started to live together.
The husband’s evidence was that, until shortly prior to separation, the wife was an excellent mother. He made no criticism of her as a home maker. The parties did not have any property of significance when they commenced cohabitation and neither received any windfalls or inheritances during cohabitation.
Unsurprisingly, the husband asserts that, as at separation on 3 March 2009, the contributions of the parties in all of the capacities referred to in s 79(4)(a) to (c) was equal. I accept that was the case.
The husband further contends, however, that post separation and particularly in the last twelve months, he has been both the sole carer and sole financial provider for the children and that everything that has occurred after the wife’s unilateral relocation of the children to northern Victoria in November 2010 requires that a further adjustment be made in his favour. He seeks a further 2.5% with the effect that his contributions pursuant to s 79(4)(a) to (c) would be assessed at 52.5% whilst the wife’s contributions would be assessed at the lower at 47.5%.
I accept that the last twelve months has been exceedingly difficult for the husband. Unexpectedly he has become the sole carer for the three young daughters of the marriage. There is no doubt that he loves the girls but I accept that he foresaw their primary care resting with the wife, in Melbourne, whilst he continued to pay child support at a reasonable rate and to see them as frequently and regularly as agreed. When the girls came into his care, they were confused, distressed, resentful and, I am satisfied, difficult to manage. The husband has not sworn to the difficulty in affidavit or oral evidence but, as detailed in my decision of 13 July 2011, I have listened to many hours of family telephone conversations between the girls, the wife and the husband from which I am comfortably satisfied that the atmosphere within the home was frequently fraught and usually strained, due in no small part to the wife’s proclivity to undermine the husband’s role as interim residence parent.
The wife has not paid child support to the husband since the girls have been in his care. He has been solely responsible for the costs of Ss attendance at private school and has incurred tuition fees of $6,000 plus incidental costs. The husband’s evidence is that he has not applied for an administrative assessment on “compassionate grounds” or words to that effect. However, I cannot accept that the wife has made no contribution to the girls’ upkeep over the last year. The husband has had the benefit of remaining in the former family home which is a property in which all of the parties’ non-superannuation capital is tied up. He has paid the mortgage at $300 per week[62] but in doing so has preserved his own equity in the asset and probably accommodated himself and the girls at a more modest cost than market rental payable for a comparable property.
[62]Item 21 in husband’s Financial Statement affirmed 28 October 2011
I have regard to the fact that the parties cohabitated for seventeen years and were parents for eleven of those years before they separated in March 2009. A proportional adjustment to contributions in favour of one party sought in respect of one year out of seventeen years, as is the case here, must be carefully scrutinised to avoid a disproportionate and unjustified loading being given to circumstances which endured for only about 5% or 6% of the marriage.
Taking all of the evidence into account, I am satisfied that there should be an adjustment in favour of the husband for the post separation period during which he has had the children residing with him under difficult circumstances, however it will be a little less than that for which the husband’s counsel contended.
I conclude that the contributions of the husband and the wife in all capacities since the commencement of cohabitation to date should be assessed as to 52% to the husband and 48% to the wife.
In money terms and in the context of the pool of divisible assets being $839,115, the respective contributions are assessed as follows:
a)$402,775 or 48% to the wife made up of non superannuation assets and superannuation assets;
b)$436,340 or 52% to the husband made up of non superannuation assets and superannuation assets.
If each of the parties were to take his/her entitlement to the different property and interests, the wife would receive about $150,945 and the husband would receive $163,523 from the proceeds of sale of the home (valued indicatively). Then from the superannuation interests, the wife’s contribution based entitlement would be $251,831 and the husbands contribution based entitlement would be $272,816. As to whether or not that occurs, is a matter which I consider under the fourth step.
Section 79(4)(d) to (g)
I now turn to the third step in the process of apportioning the assets available for distribution between the parties.
Section 79(4)(d)
The effect of any proposed order upon the earning capacity of either party to the marriage
The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings. Each of the parties is employed. The husband is in receipt of an income of approximately $180,000 per annum. The wife appears to be employed for approximately $62,400 per annum.
Section 79(4)(e)
The matters referred to in s75(2) so far as they are relevant.
The only relevant adjustive factors were said to be the husband’s greater income and his primary care of the children. I agree that they are the most significant factors. However, the Court’s duty is to make an order which is just and equitable and otherwise proper having regard to the whole of s 79 for which purpose it is necessary for me to consider such other factors as appear on the evidence to be relevant.
a)The age and state of health of each of the parties
The parties are of similar age. The father is 45 years old and the mother is 43 years old. They are both in reasonable physical health. There are concerns expressed by the parenting experts as to the wife’s mental health and the husband says that she has lost a lot of body weight in the last three years. There is no diagnosis in relation to the wife. If she relies on a more precarious state of health than the husband enjoys, it is incumbent upon her to adduce evidence.
b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
Both are employed and I have no firm reason to believe that they will not continue to be employed. Whilst concerns endure about the wife’s mental health, she has attracted and accepted a good offer of employment during the most tumultuous events in the parenting case. Absent some evidence, it would be speculative, and unsafe, of me to conclude that the wife will be unable to work into the future. It may be that the wife’s behaviour vis a vis the children and the husband is never modified or improved but that she continues to be employed as a teacher, earning more than $60,000 per annum, for a long time into the future.
The husband’s income is approximately three times that of the wife but, by community standards, neither income is very high. Nonetheless, I am satisfied that the wife’s contribution based entitlement needs to be adjusted in a very meaningful way on account of her lesser income earning capacity.
c) Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years
The girls will reside in the primary care of the husband and I must assume that will continue to be the case. In my view this is the most significant adjustive factor in the application of s 75(2) to this case.
The husband’s responsibility to care for the children is all consuming in emotional as well in financial terms. There is no respite by virtue of cooperative or shared parenting or spend time arrangements. The husband is, in every sense, the sole parent. S is 13 years old, E is 11 years old and T turns 10 later this month. The husband has not less than eight solid years of parenting in front of him.
S goes to a fee paying Catholic school and the husband proposes that the other children will follow her to the same or a similar school, depending on where the family will relocate after E has finished Year 6 in 2012 and before school starts in 2013. At the moment the school fees for S are $6,000 per annum and the fee structure is such that there is no relief or discount for siblings. For the purpose of s 75(2), I merely take into account that the husband is responsible for educating the girls at a government school standard but that is far from free in Victoria when regard is had to levies, camps and equipment and extra curricular activities as well.
I assume that the husband will apply for, and receive, child support at a proper rate from the wife.
The husband’s ongoing care of the three daughters of the marriage is a factor which requires a very significant adjustment in the husband’s favour.
d) Commitments of each of the parties that are necessary to enable the parties to support himself or herself and a child or another person that the party has a duty to maintain; and
e) The responsibilities of either party to support any other person;
Neither party is responsible for the support of a person other than themselves and the girls.
f) The eligibility of either party for a pension, allowance or benefit under
any law of the Commonwealth, of a State or Territory or of any other country; or
any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The parties are both relatively young and a long way from reaching a condition of release under their respective superannuation interests. Neither are in receipt of a government pension.
g) Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
The parties appear to have lived modestly and prudently during their years of cohabitation and I expect that they will continue to do so on the basis of the share of capital from these orders and their income from personal exertion.
h) The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
j) The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k) The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
This is not a case where either party makes application in respect of spousal maintenance. Both parents have up to date qualifications and a sound capacity to earn income into the future.
l) The need to protect a party who wishes to continue that party’s role as a parent;
Both parents are employed and will continue to be so. The husband has managed to negotiate a working from home arrangement so as to be more available for the children. I accept his evidence that working outside the home was unmanageable having regard to the needs of the children for supervision, home duties and attendances at extra curricular activities. A requirement that he work from home must restrict the husband’s ability to obtain suitable alternative employment.
m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
The husband has repartnered with Ms X. She has not been employed since August 2011 but previously earned some $60,000 or $80,000. They are not yet living together so there was no evidence as to their joint financial circumstances. My impression is that Ms X will be self supporting and not reduce the funds available to the husband for the support of himself and the children.
na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
A child support assessment is likely to issue against the mother if and when the father applies. I accept that on the current incomes of the parties, it may be in the vicinity of $500 per month payable by the wife.
o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
I take into account that each party has made contributions to superannuation post separation that are not wholly taken into account in the valuation of their respective interests.
I observe that the parties have more illiquid assets, by way of superannuation interests, than they have liquid assets. It is appropriate to make a splitting order pursuant to which the parties will take illiquid assets in the same proportion as they take liquid assets.
Conclusion on adjustive factors under s 75(2)
Taking all these matters into account and most particularly the husband’s greater income which must be balanced against his ongoing responsibility to care for the children, I conclude that an adjustment ought to be made in favour of the husband of eight per centum of the property pool. That is a division of 60% to the husband and 40% to the wife.
This adjusted entitlements of the parties can be described, indicatively at least, as follows:-
c)$335,646 to the wife comprising approximately $125,787 from the sale of the home and being entitled to superannuation of $209,859 inclusive of the superannuation interests in VicSuper Scheme, Legalsuper, Caresuper and Hesta Superfund.
d)$503,469 to the husband comprising approximately $188,681 from the sale of the home and with the husband retaining $314,788 of his superannuation interest.
Section 79(4)(f)
Any other order made under this Act affecting a party to the marriage or a child of the marriage.
There are no other orders made under the Act which affect a party or the child which needs to be taken into account, save for the parenting orders which are provided for herein and which will result in the children living primarily in the husband’s household.
Section 79(4)(g)
Any child support that a party to a marriage has provided, or is to provide, or might be liable to provide in the future, for a child of the marriage.
This provision has been considered in relation to s 75(2)(na) above.
Fourth step: are the orders just and reasonable?
My assessment of contributions and adjustive factors and matters otherwise to be taken into account result in a final alteration of property interests, expressed proportionately, is 60% to the husband and 40% to the wife.
Standing back and considering the operation of the orders, I am satisfied that the financial outcome is just and equitable.
Conclusions
For the above reasons I am satisfied that the parenting and property orders set out at the commencement of these reasons are appropriate and I make orders in those terms.
Costs
The husband seeks that the wife contribute to his costs of the proceedings in the sum of $15,500 which amount does not include any allowance for the costs of the final hearing and judgment or costs yet to be incurred.
Section 117 of the Act contains the general rule that each party to proceedings under the Act shall bear his or her own costs. The object of the rule is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose.[63] However, the Court retains the discretion to make an order for costs if it is of the opinion there are circumstances that justify that course and it would be just to do so.
[63]In the Marriage of Kohn (1977) 30 FLR 175 at 177.
In considering whether to make an order the Court must have regard to the matters set out in s.117(2A). The weight to be attached to any of the considerations in sub-section (2A) is wholly discretionary. Whilst no single factor out-ranks any other, there is nothing to prevent one or other of the considerations being the sole foundation for a costs order.[64] As Kay J observed in Brown & Brown[65]:
In many cases there will be an outstanding feature . . . that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other s 117(2A) considerations.
[64]LAC and TRF and LKL [2005] Fam CA 158 at [41].
[65](1998) FLC 92-822 at 85,347.
It appears that counsel for the respondent father brings his application under matters in paragraphs 117(2A)(a), (c), (e) and (g). They are:-
(a) the financial circumstances of each of the parties to the proceedings;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(g) such other matters as the court considers relevant.
Costs are sought in relation to disbursements borne by the father for expert evidence or specialist services. He seeks reserved costs and costs of his last application in a case in which he sought that passports issue for the girls and the former matrimonial home be sold.
Significantly, the only notice that the wife has of his application for costs is at paragraph 20 of his affidavit of evidence in chief wherein he states:-
I seek in these proceedings that from the entitlement of [the wife] to the net proceeds of sale [of the former matrimonial home], I receive the sum of $15,500.00 by way of a contribution to costs in these proceedings.
I have regard to the financial circumstances of the husband and the wife, which are discussed above in some detail in relation to alteration of property interests. The husband has a greater income but he also has more responsibilities in that he is the primary carer of the three daughters of the marriage. I am satisfied that neither party can easily afford to pay legal costs, be those costs incurred for himself or herself or the other party. Much less can either afford to pay costs that are unnecessarily incurred or which could have been avoided. The husband has been represented throughout the proceedings whereas the mother has been self represented since early this year.
Neither party is in receipt of legal assistance.
The costs of the hearing on 20 April 2011 arose, in part, because the wife did not return the children to the husband at Easter. In failing to do so, the wife was in breach of an order.
On 5 May 2011, before FM Connolly, the wife was largely unsuccessful in the parenting issues result.
On 13 July 2011, the wife was unsuccessful in the parenting issues result.
I am satisfied that the wife was substantially unsuccessful in all matters arising from the husband’s application in a case filed 13 September 2011.
Most significantly, in relation to the wife’s conduct in the proceedings, she appeared at the hearings before me on 5 May and 13 July 2011 and said that she would file documents but did not do so. In fact, the wife has not filed any documents at all since the proceedings were transferred into this Court. However, she has not done anything to mitigate the rate at which the husband incurs costs to run the proceedings, a good example being the husband prosecuting his application in a case in October 2011.
The husband filed an application on 13 September 2011 seeking interim orders. The wife had notice of the relief he sought but did not agree to that outcome. The matter was listed for mention before me on 15 September 2011, essentially because the husband sought an urgent hearing. The wife attended the mention. Had the husband filed his application earlier, the matter would not have had to be listed for mention. Accordingly, the wife should not be responsible for any of the husband’s costs on 15 September 2011.
On 15 September 2011, the wife said that she opposed the orders sought by the husband and described a long affidavit upon which she would be relying. However, she did not file any evidence nor appear at court on 17 October 2011. I am satisfied that, with the exception of the costs of the mention on 15 September, all costs incurred by the husband in relation to his application in a case are costs for which the wife should be substantially responsible either because she had notice of what the husband sought and did not agree or because he incurred costs unnecessarily.
I am satisfied that the circumstances of the case justify the wife being responsible for 80% of the reserved costs and the costs of the husband’s application in a case (excluding the mention on 15 September).
The wife ought to pay one half of the professional costs of the experts assessments to which she agreed, namely those by Ms M and Dr D. That is in the sum of $2,500. Paragraph 4.2 of the Order made, by consent, on 20 December 2010 requires that occur.
The husband seeks that the wife be solely responsible for the costs incurred by him, to date, for the children to see Dr N, psychologist. Dr N has also seen the husband and, as her affidavit makes clear, engaged with the wife although not face to face. The husband says, in summary, that “the necessity to engage with Dr N has been solely attributable to [the mother’s] conduct…”[66]. I regard that as an overly simplistic view and inaccurate to the extent that it does not recognise the complex nature of the case in which the wife’s behaviour has caused considerable anxiety to the girls but the husband’s parenting capacity has been in some ways and from time to time undeveloped or incomplete. I am not being critical of either party. In my assessment, however, Dr N’s involvement has been required for the girls because of the complex dynamic within the family the negative aspects of which I am unable to be satisfied rest solely with the mother. Accordingly, the circumstances of the case do not justify the wife being solely responsible for the cost of Dr N’s attendances to date. I am satisfied that circumstances justify the wife being responsible for one half of the costs associated with Dr N, notwithstanding that it is clear that the wife does not accept Dr N’s expertise. One half of the cost claimed is $1,725 which is the sum that I will order be paid by the wife.
[66] Husband’s affidavit affirmed 9 November 2011 [20.2]
As to quantification of the costs of which the wife is to pay 80%, the husband claimed costs at $394 per hour when the scale is approximately $205 per hour. Counsel for the husband accepted that, absent an agreement between the husband and wife, the costs in this regard should be assessed.
On an assessment of part of the costs, I suspect that the assessed costs and the $3,525 payable for the experts, may exceed the $15,500 claimed by the husband and of which I am satisfied that the wife has notice. It is not appropriate that the wife be responsible for costs over and above the amount of which she has notice. Accordingly, I will cap her liability at $15,500. The costs ordered do not include the costs of any assessment which may be required to be undertaken to assess quantum or the costs of the hearing before me on 21 November 2011 or judgment on 23 November 2011.
I certify that the preceding two hundred and twenty-three (223) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 December 2011.
Associate:
Date: 5 December 2011
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