ORTONA & PETERS
[2015] FamCA 99
•26 February 2015
FAMILY COURT OF AUSTRALIA
| ORTONA & PETERS | [2015] FamCA 99 |
| FAMILY LAW – CHILDREN – with whom the children should live – allegations of family violence made by the mother – whether the children need to be protected from the father because of family violence – each parents’ capacity to parent – whether each parent is able to encourage and facilitate a meaningful relationship between the children and the other parent – whether the week-about live with arrangement should be altered – how much time the children should spend with each parent and under what circumstances – orders made for the children to live with the father and spend substantial and significant time with the mother – presumption of shared parental responsibility rebutted – father to have sole parental responsibility for the children. FAMILY LAW – PROPERTY – just and equitable division of assets – property of the relationship comprised of the parties’ former home, two garages, some chattels and superannuation – parties agreed former home and garages should be sold – parties agreed to a superannuation splitting order – wife seeking a 70/30 per cent division of asset pool in her favour – husband seeking a 58/42 per cent division of asset pool in favour of the wife – alleged existence of a debt to a third party – held 55/45 per cent division of asset pool in favour of the wife is just and equitable. FAMILY LAW – PRACTICE AND PROCEDURE – leave to reopen – the mother's application to adduce further evidence – consideration of prejudice to the father – mother’s application refused. | |
| Family Law Act 1975 (Cth) | |
| Bevan & Bevan (2013) FLC 93-545 |
| APPLICANT: | Mr Ortona |
| RESPONDENT: | Ms Peters |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 8590 | of | 2012 |
| DATE DELIVERED: | 26 February 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 7, 11 – 15, 18 – 20, 27 – 28 August 2014, 30 December 2014 and 10 February 2015 |
REPRESENTATION DURING THE TRIAL ON
7, 11 – 15, 18 – 20, 27 – 28 AUGUST 2014:
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Gates |
| SOLICITOR FOR THE RESPONDENT: | Belleli King & Associates | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Agresta | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
REPRESENTATION DURING THE HEARING ON
30 DECEMBER 2014:
| THE APPLICANT: | In person |
| THE RESPONDENT: | No appearance | |
| SOLICITOR ADVOCATE FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Smith | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
REPRESENTATION DURING THE HEARING ON
10 FEBRUARY 2015:
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Agresta | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
Parenting
All previous parenting orders in relation to the children B born … 2003 and C born … 2005 (“the children”) be discharged.
The father have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (Cth) (as amended) (“the Act”)) for the children, save that the father shall, prior to making the sole ultimate decision about any such issue, use his best endeavours to advise the mother in writing (via letter, email or communication book) of the decision intended to be made, in order to:
(a) seek the mother’s written response in relation thereto;
(b)consider, by reference to the child’s best interests, any such response prior to making any decision; and
(c)advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The children live with the father.
The children spend time and communicate with the mother as follows:
(a)during school terms, each alternate weekend from the conclusion of school (or 3.30 pm if it is a non-school day) on Friday until the commencement of school (or 9.00 am if it is a non-school day) on Monday commencing on Friday 13 March 2015;
(b)for the first half of each school term holiday, from the conclusion of school on the last day of term until 5.00 pm on the middle Saturday of that school holiday period;
(c)from 12.00 pm on Christmas Day until 12.00 pm on Boxing Day in 2015 and each alternate year thereafter, and from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day in 2016 and each alternate year;
(d)during the long summer vacation from 12.00 pm Boxing Day until 12.00 pm on 11 January commencing from the 2015/16 long summer holidays and each alternate year thereafter, and from 12.00 pm on 10 January until 12.00 pm on 26 January in the 2016/2017 long summer holidays and each alternate year thereafter;
(e)in the event that the children are not otherwise with the mother on the Mother’s Day weekend, the children spend time with the mother on the Mother’s Day weekend from the conclusion of school on the Friday of that weekend until the commencement of school on the following Monday;
(f)on the mother’s birthday, from the conclusion of school until 8.00 pm when such occasion falls on a week day and from 10.00 am until 6.00 pm when such occasion falls on a weekend during which the children are not otherwise with the mother
(g)on each of the children’s birthdays from the conclusion of school until 6.30 pm when such occasions fall on a week day and from 10.00 am until 3.00 pm when they fall on a weekend; and
(h)that the children communicate with the mother each Wednesday between 6.00 pm and 6.30 pm, with the father to initiate the call to the mother’s mobile telephone number.
The children’s time with the mother be suspended as follows:
(a)On Father’s Day weekend, the children spend time with the father on the Father’s Day weekend from the conclusion of school on the Friday of that weekend until the commencement of school on the following Monday;
(b)on the father’s birthday, from the conclusion of school until 8.00 pm when such occasion falls on a week day and from 10.00 am until 6.00 pm when such occasion falls on a weekend during which the children are not otherwise with the father; and
(c)on each of the children’s birthdays from the conclusion of school until 6.30 pm when such occasions fall on a week day and from 10.00 am until 3.00 pm when they fall on a weekend.
Where changeover does not take place at school, it is to take place at McDonald’s, Suburb D, or any other place agreed upon in writing between the parties.
Both parents facilitate any reasonable request by the children to talk to the other parent by telephone, with each parent to facilitate such telephone time by telephoning the other parent’s mobile number.
The mother and father keep the other advised at all times of a current telephone/mobile number.
The mother and father keep each other advised at all times of a current residential address.
The mother and father use a communication book to communicate with each other on matters relevant to the children’s welfare and education and each parent use their best endeavours to ensure that the communication book travels with the children at changeover.
Each parent is restrained from being present at the children’s school at the end of the school day on those days when the other parent is to collect the children pursuant to this order.
As soon as practicable, the father advise the mother of any significant illness or injury that affects the children whilst they are in his care and in the event of significant illness or injury, the father authorise the treating medical professionals to speak to the mother about the children’s treatment, though the father alone shall be responsible for decisions relating to all treatment or other interventions undertaken by the professionals.
In the event that the mother takes the children to a medical practitioner when the children are spending time with her, she is to advise the father within 24 hours of the name, address and telephone number of the medical practitioner and authorise the medical practitioner to speak to the father. In the event that no such authority is provided, paragraph (2) of these orders shall stand as authority and the father is entitled to provide a copy of this order to the medical practitioner.
Pursuant to s 121(9)(g) of the Act, prior to being discharged, the Independent Children’s Lawyer be at liberty to provide a copy of these parenting orders to the school at which the children attend.
The father authorise the children’s school to provide to the mother, at her expense, all school reports, school photograph order forms and newsletters.
The parents be at liberty to attend any school functions to which parents are invited in the usual course regardless of in whose care the children are at the relevant time, save for any contrary direction made by school authorities. The parents provide written notice to the other parent, in the communication book or by email, at least seven days prior to that school function of their intended attendance.
In the event that the children are to be removed from the state of Victoria for the purpose of holidays, the travelling parent give the other parent at least 14 days written notice of the intention to travel and ensure that the other parent has contact details for the children whilst they are away.
The mother and father attend a Parenting Orders Program as soon as practicable.
It is requested that the family consultant, Ms E, or her nominee in Child Dispute Services in the Melbourne Registry, meet with the children and explain to them the effect of the orders made this day prior to releasing the children into the care of the father.
The Independent Children’s Lawyer be discharged within fourteen days.
Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations these orders create and the consequences that may follow if a person contravenes these orders, as well as details of who can assist parties to adjust to and comply with an order, are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
Property
BY CONSENT, the de facto husband and the de facto wife (hereinafter referred to as “husband” and “wife”) do all acts and things and sign all documents as may be necessary to forthwith place the property at F Street, Suburb D, (“the F Street property”) and the two garages at 1 and 2 G Street, Suburb D, (“the garages”) on the market for sale (“the sale”) and to distribute the proceeds of sale as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge all mortgages secured on the F Street property and the garage at 2 G Street Suburb D;
(c)thirdly, to pay rate adjustments;
(d)fourthly to pay the following liabilities which have been agreed between the parties as follows:
(i)the wife’s NAB credit card of $35,000;
(ii)the wife’s NAB credit card $6,752, the wife’s body corporate fees for the garage of $3,000;
(iii)the wife’s miscellaneous debts of $3,623;
(iv)the husband’s CBA MasterCard of $1,500;
and the parties do all acts and things to discharge any liabilities for the debts; and
(e)THE COURT ORDERS THAT, the parties do all things necessary to distribute the balance as to :
(i)55 per centum thereof to the wife; and
(ii)45 per centum thereof to the husband.
Pending completion of the sale:
(a)the husband have the sole right to occupy the real property and during such right of occupation the husband pay all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)the husband be responsible for payment of the mortgage registered on the property and he indemnify and keep indemnified the wife against all liability under the mortgage; and
(c)neither party encumber the real property without the consent in writing of the other party.
In relation to the conduct of the sale:
(a)the selling agent shall be as agreed between the parties and failing agreement to be determined by the President of the Real Estate Institute of Victoria; and
(b)the terms and conditions of the sale including the method of sale, reserve price and settlement periods shall be as agreed between the parties and failing agreement as determined by the selling agent.
BY CONSENT:
(c)pursuant to s 90MT(4) of the Act, a base amount of $41,594.57 is allocated to the wife from the husband’s interest in the AustralianSuper Fund member number 32370551 (“the Fund”).
(d) pursuant to s 90MT(1)(a) of the Act:
(i)the wife is entitled to be paid the amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(ii)the wife’s entitlement and the entitlement of such other person to whom a splittable payment may be made to payments out of the husband’s interest in the Fund is correspondingly reduced by force of this order.
(e)the trustee of the Fund (“the trustee”) shall do all such acts and things and sign all documents as may be necessary to:
(i)calculate in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement created for the wife by paragraph (24)(d)(i) of these orders; and
(ii)pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the Fund.
(f)this order shall have effect from the operative time and the operative time is four days after the date of service of these orders.
(g)the wife shall do all things necessary, including but not limited to making a request pursuant to reg 7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 (Cth), to effect the rollover or transfer of the transferable benefits out of the husband’s interest in the Fund into a fund of the wife’s choosing (namely MLC MasterKey Personal Super Fund account number 27796031) in accordance with reg 7A.12 of the Superannuation Industry (Supervision) Regulations 1994 (Cth).
(h) the Court notes that:
(i)the value of the transferrable benefits from the husband’s interest to the wife’s interest is as calculated in accordance with r 7A.12 of the Superannuation (Supervision) Regulations 2004 (Cth); and
(ii)pursuant to r 14F of the Family Law (Superannuation) Regulations 2001 (Cth), any payment from the husband’s superannuation interest in the Fund made after the trustee has created a new interest in the wife’s name in the husband’s interest in the Fund as contemplated by paragraph (24) of these orders are not splittable payments.
BY CONSENT, until the happening of any of the following:
(a)the establishment of a separate account in the name of the wife in the Fund; or
(b)the transferring or rolling over into another superannuation fund of the payment created by paragraph (24) of these orders; or
(c)the wife satisfying all of the conditions of release and receiving the payment created by paragraph (24) of these orders; or
(d)the wife’s execution of a waiver of rights within the meaning of s 90MZA of the Act in relation to the payment created by paragraph (24) of these orders;
the husband, by himself, his servants or agents, be restrained from doing any acts or things which may prevent the wife, her heirs, executors, administrators or nominees from receiving the benefit in the Fund to which she is entitled pursuant to these orders and is restrained from executing a death nomination in favour of another person or doing any other act or thing that would render any part of her interest in the Fund (a non-splittable payment) within the meaning of reg 9 or reg 10 of the Family Law (Superannuation) Regulations 2011 (Cth).
BY CONSENT, the husband will direct and authorise the trustee of the Fund to communicate with the wife and/or any person authorised by her in writing:
(a)to answer any reasonable enquiries as may be made by her or on her behalf from time to time regarding her entitlement in the Fund; and
(b)to give the wife and/or her authorised representatives a copy of any notice of any application or request by the husband which seeks release of entitlements in the Fund insofar as that release of entitlements in the Fund is pursuant to these orders.
Except as otherwise provided, each party be responsible for debts held in that party’s name, and indemnify and keep indemnified the other in relation to those debts.
The wife and husband each pay $605 for the balance of the witness costs for
Dr H, noting that Victoria Legal Aid will contribute $550 towards his costs for the day and that the total costs were $1,760.
BY CONSENT, the wife pay from her share of the proceeds from the sale of the F Street property and the garages a sum of $2,500 to the husband for the wife’s share of the costs of Dr H’s report.
In respect of the Independent Children’s Lawyer’s oral application made on 30 December 2014 for the wife to pay the Independent Children’s Lawyer’s costs for the appearance in the application that day in the sum of $534.00, NOTING THAT the husband did not oppose this application, failing agreement:
(a)By 4.00 pm on 25 March 2015, the wife and the Independent Children’s Lawyer file and serve any written submissions regarding the application for costs; and
(b)any judgment on costs is to be determined on the written submissions in Chambers unless a party seeks to make an oral submission in addition to a written submission.
All extant applications be dismissed, save and except for any applications for costs, and the matter be removed from the list of cases awaiting finalisation.
AND THE COURT NOTES THAT:
A.Procedural fairness has been accorded to the husband’s superannuation trustee, AustralianSuper, as outlined in Exhibit 7, being a letter from the wife’s then solicitors to the Trustee of AustralianSuper Fund dated 8 August 2014.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ortona & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 8590 of 2012
| Mr Ortona |
Applicant
And
| Ms Peters |
Respondent
REASONS FOR JUDGMENT
Introduction
Parenting
This proceeding concerns two children of a de facto relationship of about 10 years and competing applications for final parenting and final property orders. The proceeding was transferred to this Court from the Federal Circuit Court where interim parenting orders were made for the children.
B is aged 11 years and has been diagnosed with an emotional and social disorder. C is aged 10 years. The children have been living with each parent on a week-about arrangement since interim orders were made in the Federal Circuit Court on 23 August 2013.
The parties first met and began a relationship in 2000, commencing cohabitation in September 2002 and separating on a final basis on 30 August 2012 after an altercation where police attended and removed the mother from the house. The father has continued to live in the parties’ former home. The mother lives in rental accommodation.
Both parents have indefinite intervention orders against each other made in the Magistrates’ Court by consent without admission of the allegations. The mother obtained intervention orders on behalf of the children of the relationship.
An application by the mother, which included the children, for an intervention order against the paternal grandmother, Ms I Ortona, was made in 2013 but was subsequently struck out because of the mother’s failure to attend court. The mother alleged in that application and during the trial that C had told her that she overheard the father and the paternal grandmother discussing a plan to kill or pay someone to kill the mother.[1] This was vehemently denied by the father.
[1] Affidavit of the father sworn 1 July 2014 at Annexure JO-14.
There is a history of investigations conducted by the Department of Human Services (“DHS”) and the police into the welfare of the children. In a case closure summary from 2013, DHS assessed the children as having been emotionally abused by both parents as a result of being caught in the middle of the parents’ acrimonious relationship and family law issues.[2] However DHS assessed that the children were not at immediate risk of harm warranting further involvement. After investigating between 2012 and 2013, DHS took no further action. The police have not laid any charges.
[2] Exhibit ICL7.
Central to the issues in the trial was which parent should have sole parental responsibility for the children and whether the children should live primarily with the father and spend time with the mother. An underlying assumption of both parties was that equal shared parental responsibility would be impractical and impossible because of the chronic history of parental conflict. This was emphasised in the submissions of the Independent Children’s Lawyer. Accordingly there was agreement between the parties that the presumption of equal shared parental responsibility was rebutted on the evidence. Independently of this agreement I consider for reasons which appear below, that the presumption has been rebutted on all the evidence.
The father alleged that the mother would not facilitate a meaningful relationship between himself and the children. He complained of the mother influencing the children to make false allegations of abuse against him.
The Independent Children’s Lawyer, supported by the father, proposed that the father have sole parental responsibility for the children in respect of all major long-term issues, save that he use his best endeavours to advise the mother in writing of any decision intended to be made about any long-term issues in order to consider the mother’s written response and advise her in writing as soon as reasonably practicable of his ultimate decision. The Independent Children’s Lawyer, supported by the father, proposed that the children live with the father and spend alternate weekends with the mother, as well as half of school holidays in addition to special days.
The mother proposed that she have sole parental responsibility for the children and that the existing week-about arrangement under the interim parenting orders continue. It is readily apparent that the mother’s application for orders for continuation of the week about arrangement is entirely inconsistent with any suggestion that the children are at unacceptable risk of harm with the father.
The mother made very serious allegations of a history of violence perpetrated against her by the father in the presence of the children during the course of the relationship. However, the mother’s case was confusing and inconsistent regarding whether the father was a risk to the children. While she vehemently insisted that the children were not at risk in their father’s care, the mother made reference to various allegations of violence perpetrated against B in particular that belied this apparent certainty about the children’s safety. Several instances of this inconsistent evidence will be discussed later in these reasons.
Property
The property of the relationship is comprised of the parties’ former home at F Street, Suburb D, (“the F Street property”) registered in the name of the de facto husband (for the sake of simplicity, hereinafter referred to as ‘the husband’ in the property proceedings) and two garages, one at 1 G Street, Suburb D, which is registered in the name of the de facto wife (for the sake of simplicity, hereinafter referred to as ‘the wife’ in the property proceedings), and one at 2 G Street, Suburb D (registered in the name of the husband). Since separation the husband has lived in the F Street property and the wife has lived in rental accommodation. The valuations of the F Street property and the garages were agreed.
It was agreed that the real properties should be sold to satisfy the husband’s liability for the mortgages, to pay commissions and expenses and to discharge liabilities agreed upon. The valuation of the liabilities was also agreed. The only other relevant property was the furniture in possession of the husband which the wife sought to be taken into account in her favour.
The parties agreed that there should be a 50/50 division of the sum of their superannuation entitlements. The wife would thus receive the benefit of a splitting order in respect of the husband’s fund.
The husband conceded that the wife had made a more significant initial financial contribution to the purchase of the F Street property where they both lived prior to separation. He proposed that the balance of the proceeds of sale of the properties be divided between them on the basis of a 58/42 per cent division in favour of the wife. He did not put an alternative position should the children reside with him.
The wife proposed that the balance of the proceeds of sale of the properties be divided between the parties on the basis of a 70/30 per cent division in her favour to reflect her greater financial contribution at the beginning of the relationship and her lower income earning capacity in comparison to the husband. This proposal was regardless of an outcome where the shared care arrangement continued or an order was made for the children to reside with the husband.
The parties took issue with the extent of the financial and non-financial contributions that each had made during the relationship.
The husband disputed that the wife or the parties jointly had a debt of $272,000 payable to a friend of the wife, Ms J. The wife claimed that she had used the proceeds of this loan for family living expenses and to pay the mortgage.
The parties were also in dispute about the treatment of $19,000, being the proceeds of an insurance claim received by the husband post-separation for the damage to the family car which had been shared during the relationship.
There was also a dispute as to the treatment of the husband’s legal fees of $10,139 paid from joint funds before the parties separated. The husband did not dispute that this amount had been used by him from joint funds before separation for the purposes of obtaining legal advice about family law issues.
The Independent Children’s Lawyer sought that an order be made for the parents to equally contribute to the balance of the witness fees for Dr H of $1,760. Victoria Legal Aid is to contribute $550 to those costs. It is appropriate to make such an order as both parties required Dr H for cross-examination.
The Independent Children’s Lawyer also sought an order that the mother pay costs of $534 for the attendance of the Independent Children’s Lawyer at a hearing on 30 December 2014, when a recovery order was made for the children.
Background
The applicant father is aged 42 years and is employed as a technician. He has a new partner, Ms K, aged 40, who is self-employed. Ms K met the children in October 2013 and spends time with them. The father does not live with Ms K but she spends week nights and weekends with the father and the children.
The respondent mother is aged 44 years and her work history is not entirely clear on the evidence. The mother gave evidence that she has previously been employed as a salesperson but has not been employed in this capacity for over 10 years. The mother stated to the Family Report writer that she was currently employed in a number of part time jobs. The mother has been diagnosed with post-traumatic stress disorder.
Procedural History
On 20 September 2012, the father filed an initiating application in what was then the Federal Magistrates Court, seeking final parenting orders. The mother filed her response on 2 October 2012, seeking parenting and property orders, including orders for spousal maintenance.
Interim consent orders were made on 3 October 2012 by Federal Magistrate Turner, as his Honour then was, which provided for, inter alia, the parties and children to be placed on the Airport Watch List and for a Family Report to be completed. The Family Report was prepared by Dr L and released on 22 January 2013.
On 11 July 2013, Judge Turner ordered that the parties attend an appointment pursuant to s 11F of the Family Law Act (Cth) (“the Act”) with a family consultant from the Child Dispute Services Section of the Family Law Courts and on 19 July 2013 a memorandum was prepared by Ms E. Following the release of the memorandum on 19 July 2013, interim parenting orders were made by consent before Judge O’Dwyer for the children to live with the mother and spend time with the father.
On 23 August 2013, Judge O’Dwyer made interim orders for, inter alia, the children to spend week-about time with each parent. The mother’s application for spousal maintenance was dismissed on 14 October 2013 by Judge O’Dwyer. His Honour also ordered that the matter be transferred to the Family Court of Australia for determination.
Pursuant to orders made in this Court on 3 February 2014, the matter was listed for trial and the parties were to attend for an updated Family Report, which was completed by Ms E and released on 4 June 2014.
The parties also attended a conciliation conference before Registrar Mestrovic on 29 July 2014, which was unsuccessful in settling the property dispute.
Evidence Relied Upon
The documents relied upon by each of the parties are listed in Annexure A to these reasons.
The parties were cross-examined, as were the following witnesses:
·Ms K, the father’s new partner;
·Ms E, family consultant; and
·Dr H.
The following reports were in evidence:
·Family Report of Ms E dated 2 June 2014;
·Family Consultant Memorandum of Ms E dated 19 July 2013; and
·Psychiatric assessments of both parents by Dr H dated 15 November 2013.
The Independent Children’s Lawyer relied on the Family Report of Dr L dated 21 January 2013 which had been provided to the parties for the Federal Magistrates’ Court proceedings. Ultimately this report was not tendered during the trial and Dr L was unavailable for cross-examination for the foreseeable future due to health reasons. Accordingly I attach no weight to the contents of that report.
There were also several exhibits, which included a first visit case note and a case closure summary from DHS, as well as several Victoria Police law enforcement assistance program (“LEAP”) reports.
It is not possible for me to comprehensively refer in these reasons to every aspect of the evidence, documentary and oral, that came before me during these proceedings. Nevertheless, I have taken the totality of the evidence into account.
Parenting
The applications
By his amended application filed 11 August 2014 the father proposed that the children live with him and that he have sole parental responsibility. He proposed that the mother spend no time with the children for the first three months and then spend time with the children from 9.00 am until 5.00 pm on alternate Sundays for a further three months. The father proposed that an increase in the mother’s time with the children be considered once both parties had enrolled in and commenced participating in a Parenting Orders Program. The father sought a raft of other final orders, which were ultimately not pursued when he supported the proposals of the independent childrens’ lawyer at the conclusion of the trial.
On the afternoon of the third day of trial, the father amended his application. He proposed that the children live with him and spend time with the mother on alternate Saturdays from 9.00 am until 5.00 pm for a period of three months and thereafter on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday as well as half of all school holidays and additional time on special days.
By her amended response filed 23 July 2014, the mother proposed that she have sole parental responsibility for the children, that the children live with her and spend time with the father on alternate weekends from the conclusion of school on Friday until the commencement of school on Monday and from the conclusion of school on Wednesday until the commencement of school on Thursday in the other week.
At the conclusion of the trial, the Independent Children’s Lawyer proposed that the father have sole parental responsibility for the children and that they live with him and spend time with the mother each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday in addition to half of all school holidays and additional time on special days. The Independent Children’s Lawyer also proposed a raft of orders including in relation to changeover, the provision of current contact details; various restraints; orders relating to the medical treatment of the children; the utilisation of a communication book; for the parents to complete a Parenting Orders Program and for the family consultant to meet with the children and explain to them the effect of any final orders made. The Independent Children’s Lawyer also sought orders for the parents to be at liberty to provide the Family Reports of Ms E, a copy of the final orders made and a copy of any reasons for judgment to a number of people, including the children’s medical practitioners, police officers and protective workers.
At the conclusion of the trial, the father supported all of the proposals of the Independent Children’s Lawyer.
At the conclusion of the trial, having considered the proposals of the Independent Children’s Lawyer, the mother proposed through her counsel that the existing shared care arrangement for the children continue for a period of approximately two years under supervision of the Court.
After judgment was reserved, a further hearing was held on 30 December 2014 where the mother did not attend and a recovery order was made for the children to be returned to the father.
On 10 February 2015 the mother brought an application to re-open the trial and adduce further evidence. This application was opposed by the father and the Independent Children’s Lawyer. The application was refused.
The issues
The major issues for determination can be summarised as follows:
·whether the children need to be protected from the father because of family violence;
·whether either parent will encourage and facilitate a meaningful relationship between the children and the other parent;
·with whom the children should live; and
·how much time the children should spend with the other parent and under what circumstances.
Developments after the conclusion of the trial and before judgement was delivered
Following the conclusion of this 10 day trial, the mother had an agreement with the father for the children to be collected from the police station by the father on Christmas Day at 12 noon for him to spend time with the children. It had been agreed that the children spend the summer vacation from Christmas Day until 7 January 2015 with the father and that the week about arrangement continue in accordance with interim orders.
Without notice to the father, or the Independent Children’s Lawyer, the mother made an application to vary the existing intervention order and obtained an interim intervention order from the Melbourne Magistrates’ Court on 24 December 2014. The interim intervention order was obtained in circumstances where the judgment was reserved in this Court and the mother had made no application to this Court to suspend or vary any existing orders in the best interests of the children.
The basis of the mother’s application in the Magistrates’ Court was a statement made to the police by the mother on 21 December 2014 which has not been produced in evidence to this Court. The mother has deposed that this statement was emailed to the Independent Children’s Lawyer. The reasons or grounds for the mother’s application to vary the intervention order are recorded as:
During recent family court trial, [Mr Ortona] admitted to domestic violence, [Ms K] admitted to seeing [Mr Ortona] verbally abuse children whilst in his care, and having (sic) [Mr Ortona] permission to access my email accounts, print them etc. [Mr Ortona] – via family court psychiatrist admitted to physically assaulting me and my son.[3]
[3] Affidavit of the father sworn 29 December 2014 at Annexure JO-4.
The mother deposed that soon after the Magistrates’ Court proceedings, she left Melbourne with the children for country Victoria on the advice of a family violence refuge service which provided accommodation and transport.
When the husband attended the police station to collect the children on Christmas Day, he was served with the mother’s application to vary the intervention orders. On making enquiries he was later informed by the police that the Family Court orders had been suspended in conjunction with the making of an interim intervention order pursuant to s 68R of the Act.
The whereabouts of the children were unknown to the father. The mother’s application for variation of the existing intervention order was returnable at the Melbourne Magistrates’ Court on 14 January 2015. The mother ultimately did not attend the Melbourne Magistrates’ Court on that date and the father was required to attend. The mother’s application to vary the intervention order was struck out and the original indefinite intervention order continues to remain in place.
The father supported by the Independent Children’s’ Lawyer successfully obtained an urgent recovery order for the children in this Court on 30 December 2014. The mother did not attend the hearing and could not be contacted by mobile phone despite numerous attempts made during the morning of the hearing.
Pursuant to the orders I made on 30 December 2014, a recovery order was issued and the children spent time with the father for the remainder of the summer vacation period after the mother returned the children to the father. The interim week about arrangement continued after 30 January 2015 when the children returned to school.
The orders also reserved liberty to the mother to apply generally on short notice and specifically to seek orders to spend time or communicate with the children prior to the resumption of the week about arrangement. The orders also provided for any party seeking to apply to reopen the case to adduce further evidence to file and serve applications no later than 27 January 2015.
The mother filed an application in a case seeking orders to spend time with the children on 27 January 2015, three days before the resumption of the week about arrangement. This application was subsequently withdrawn and the mother’s amended application in a case filed 2 February 2015 and the father’s response to that application in a case were the subject of a hearing before me on 10 February 2015.
The evidence about the conduct of the mother since the conclusion of the trial demonstrates that she is not prepared to cooperate with the father. The mother has been manipulative in her use of an application for variation of the intervention order to punish the father to the detriment of the children. Notwithstanding the appointment of the Independent Children’s Lawyer the mother took steps affecting the children without consulting the Independent Children’s Lawyer and failed to cooperate in the best interests of the children.
The mother filed an extensive affidavit on 27 January 2015 in accordance with the procedural orders made at the hearing on 30 December 2014 which the mother had not attended. She also filed a further lengthy affidavit on
7 February 2015 which she subsequently did not seek to rely upon.
The mother’s application[4] before me on 10 February 2015 was essentially an application to reopen her parenting case and to adduce further evidence. The mother’s application was opposed by the father and the Independent Children’s Lawyer.
[4] Application in a case filed 27 January 2015 and amended application in a case filed 2 February 2015.
The mother deposed to numerous allegations against the father most of which revisited allegations she made during the trial such as complaints about the father using tape recordings.
In the further affidavit material the mother confirmed that the summer vacation was agreed upon by email with the father and that he was to collect the children from the Suburb M police station on Christmas Day at 12 noon.
The mother deposed that she made a new statement to Victoria Police regarding ongoing breaches of intervention orders by the father on 21 December 2014. The mother deposed that this police statement was provided to the Independent Children’s Lawyer on the same date. This statement was not in evidence before me.
The mother claims to have been encouraged and advised by the Women’s Legal Service and the Women’s Domestic Crisis service to make an application to the registrar of the Melbourne Magistrates’ Court on 24 December 2014. She deposed:
The Women’s Domestic Crisis Service were concerned that once [the father] was interviewed and charged I would be in imminent danger, as well as possibly the children.”
In the hearing conducted before me on 10 February 2015, I requested the mother to state with precision the new issues which she wished to raise. The mother sought to reopen her parenting case in the trial on the basis of what she asserted were four new issues which had arisen since the evidence in the trial was concluded. Those issues were as follows:
1.A dispute with the father about the financial material that he has provided to the child support agency which the mother asserted was “economic abuse”;
2.A dispute with the father about the necessity for B’s migraine medication;
3.Three further statements that the mother has made to the police but which she was not prepared to disclose and a further statement that she proposes to make to police alleging 52 breaches of intervention orders by the father, dating back to 2012; and
4.A dispute with the father regarding communication about the children and her lack of access to information from the children’s school.
The only police statement in evidence was dated 23 January 2015. This was annexure DP-28 of the mother’s affidavit sworn 27 January 2015. This was not the police statement which the mother relied upon for her application in the Magistrates’ Court on 24 December 2014. This statement refers to an intervention order made at Melbourne Magistrate’s Court on 16 August 2013, valid until 23 December 2014. There is also a reference to a second intervention order valid from 24 December 2014 until 14 January 2015. In this statement, the mother referred to the first Communion service for the children on 1 June 2014 when both parents attended the church. She suggests that the father and his partner, Ms K, approached C in breach of the intervention order and that her lawyer told her to report this to police after the Family Court hearing.
This is an example of the mother’s use of legal processes to make false allegations against the father and misrepresent the circumstances to authorities. There was an agreement between the parties that the father would attend the first Communion service and the approach by Ms K was a request for the children to have a photograph taken with the father.
In the statement to police, the mother also raised further allegations from late June 2014 against Ms K. During the trial Ms K was cross-examined by counsel for the mother suggesting that she had interfered with the mother’s email account. This was denied by Ms K. The mother also claimed in her police statement that in evidence during the trial Ms K admitted to “hacking” the mother’s email accounts on behalf the father. No such admission was made in the trial. The mother in her police statement proposed to obtain professional evidence about this and provide copies to the police.
This issue was a distraction in the trial which I consider irrelevant for the purposes of determining the parenting issues.
The mother raised further allegations in her statement to the police about the father contacting the Child Support Agency on 24 August 2014 to advise them that he no longer worked and claims that the father was economically abusing her because her child support was reduced and that this amounts to a breach of the intervention order.
The mother alleged that the father accessed the children’s email accounts on
29 August 2014 and told her lawyer that the children “access the emails on my computer so I believe I should be aware if [sic] what they are up to”.The mother also complained that in early December 2014 the father sent a photo of B to him using an email account owned by her.
The mother also complained about the father verbally abusing B in the same manner that she referred to in the trial. She also complained that the father has not given B his migraine medication.
The mother also complained that the father has provided copies of recordings and transcripts without her knowledge or consent according to his original affidavits. She also complained of the father providing copies of the family consultant’s memorandum to the Child Support Agency.
The mother again raised the issue of a complaint she made about a worker with the Department of Human Services Child Protection.
The mother also complained about other matters relating to the property dispute between the parties which she ultimately conceded were the subject of evidence in the trial. The mother ultimately did not seek to reopen the evidence in the trial in respect of property.
At the hearing on 10 February 2015 I refused the mother’s application to reopen the parenting case and adduce further evidence. After providing brief reasons, I indicated that I would provide detailed reasons in this judgement.
Reasons for refusing the mother’s application to re-open
The overarching principle is that to grant leave to adduce further evidence is an exercise of discretion, guided and tempered by the interests of justice.
The principles to be gleaned by the authorities in respect of the reopening of a case and the admission of further evidence will depend upon whether the case is simply one in which the hearing is complete, or one in which reasons for judgement have been delivered.[5]
[5] Smith v New South Wales Bar Association (1992) 176 CLR 256 (Brennan, Dawson, Toohey and Gaudron JJ).
Where reasons for judgement have not yet been delivered, an important consideration here is that of prejudice to the father. In a parenting case such as this where the dispute between the parents continues, and the mother makes numerous unspecified historical allegations against the father to police, it is clearly in the best interests of the children that judgement be delivered expeditiously.
Where the evidence has been concluded but judgement not yet delivered the relevant criteria governing the exercise of the Court’s discretion was summarised by Habersberger J as follows:
(a)the further evidence is so material that the interests of justice require its admission;
(b)the further evidence, if accepted, would most probably affect the result of the case;
(c)the further evidence could not by reasonable diligence have been discovered earlier; and
(d)there would be no prejudice to the other party by reason of the late admission of further evidence.[6]
[6] Reid v Brett [2005] VSC 18.
I am satisfied that it is not in the best interests of the children to reopen the trial and that to do so would prejudice the father, leading to further delay after the delay which has already been caused by the mother’s conduct since the conclusion of the trial. I am not satisfied that the further evidence raised by the mother is so material that the interests of justice require its admission. The mother has referred to serious further allegations about breaches of intervention orders she has made against the father in statements to police. Only one of those statements has been produced by the mother. That statement does not reveal new matters which would be material for the reopening of the trial in the interests of the children or material which has not previously been agitated and the subject of the trial. I am not satisfied that there is any further evidence if accepted which would most probably affect the result of the case.
I accept the submissions of the Independent Children’s Lawyer that the issues now raised by the mother are essentially the same issues agitated in the trial and that the other issues such as the conflict between the parties about financial matters are issues which do not warrant the reopening of the mother’s parenting case. I accept the submission of the Independent Children’s Lawyer that it was not in the best interests of the children to embark on a further hearing.
The mother’s conduct in December, well after the conclusion of the trial, gives rise to further concerns about her propensity for making allegations to the detriment of the relationship between the father and the children. It was not in the best interests of the children to extend the trial any further and delay judgement.
Standard of Proof
The relevant standard of proof is the balance of probabilities. Without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.[7]
[7] Evidence Act 1995 (Cth) s 140.
I have applied the Briginshaw standard[8] in considering the evidence regarding the allegations of a plot to kill the mother, the serious family violence and physical abuse allegations against the father. This takes account of the seriousness of the allegations made, the inherent unlikelihood of the occurrence of the allegations made and the gravity of the consequences flowing from a finding of fact that the allegations are true.
[8] Briginshaw & Briginshaw (1938) 60 CLR 336, at 361 – 362 per Dixon J.
I have also applied this standard regarding the allegation that the mother has effectively influenced the children to make false allegations against the father.
The evidence
DHS case closure summary
Exhibit ICL7 was a DHS case closure summary which referred to the involvement of DHS Child Protection between 2012 and 2013. The case closure summary provides an overview of DHS’s intervention in relation to the following concerns:
1.B had a bruise reportedly caused by his mother pinching him – inappropriate discipline
2.C reportedly overheard her father plotting to kill her mother
3.B had a swollen spleen reportedly due to his father throwing/pushing him onto/through a glass coffee table some years prior
4.B reportedly had a bruised hand due to his father stepping on his hand.
5.C and B reportedly have been refusing access with the father
6.The mother reportedly has an alcohol issue
7.The father reportedly has anger issues
8.There was domestic violence between both parents[9]
[9] Exhibit ICL 7, page 7 of the case closure summary.
The case closure summary details that the numerous incidents have resulted in the children being interviewed by members of DHS and a Sexual Offences and Child Abuse Investigation Team (“SOCIT”) from Victoria Police.
These incidents are discussed in detail later in these reasons.
A summary of the intervention concluded:
It is the assessment that the concerns raised for current physical abuse was not substantiated due to a lack of evidence supporting the allegations, inconsistencies in the children’s narriatives (sic) of the events leading to the alleged physical abuse, level of adult language used by [the] children when describing the alleged incident, positive observations of the children with their father made by other professionals and assessments/reports made by medical professionals about the alleged injury to [B] (not supporting that [B’s] wobbly tooth was caused by assault).
Significantly the summary records that:
Concerns have been raised by multiple professionals that it is their opinion that the mother had been telling the children what they are to tell professionals in relation to raising concerns about their care provided by their father. This supports the writer’s observations and assessments of the children during the interviews at the school.
… The Department were concerned about the impact of ongoing allegations being raised by the mother is having on the children’s emotional development and their relationship with their father.
The father
The father deposed that, since the birth of the children, he and the mother have both cared for the children and have enjoyed equal shared parental responsibility.[10] However the father deposed that from 2011, he became the children’s primary carer due to the mother’s issues with alcohol.[11]
[10] Affidavit of the father sworn 1 July 2014 at [16].
[11] Affidavit of the father sworn 1 July 2014 at [18], [20].
The father’s affidavit material includes numerous complaints about the mother’s behaviour during the course of the relationship, which he deposed included alcohol abuse towards the end of that relationship[12] and occasions when she went missing for days at a time.[13] He emphasised that these behaviours, particularly in relation to alcohol abuse, contributed to her lack of capacity to parent the children; sentiments he echoed during the trial.
[12] Affidavit of the father sworn 1 July 2014 at [18], [20].
[13] Affidavit of the father sworn 1 July 2014 at [21].
He deposed that there were numerous arguments about the mother’s consumption of alcohol[14] but that he tried to limit the exposure of the children to those arguments. He conceded in cross-examination that there were verbal arguments which included both parties denigrating each other.
[14] Affidavit of the father sworn 1 July 2014 at [57] – [70].
The father conceded that he did not have any evidence to support his suspicion that the mother may still have an alcohol abuse problem but was concerned that the mother was mentally unstable.
He deposed that during the relationship, the parties shared the parenting role including taking the children to kindergarten and to school. He deposed that he reduced his working hours towards the end of the relationship because of the wife’s inability to deal with the children in the afternoons. However from 2011, the father states that he took over all responsibilities for the children’s physical and emotional well-being as well as their schooling and social requirements. He vehemently denied in his affidavit material and in cross-examination during the trial that he had ever been physically violent towards the mother or the children but conceded that there had been verbal arguments, although he noted that there was one occasion when the mother kicked him. He stated that, in this instance, the police asked him to leave the house overnight, after an argument where they had been called to the house. He claimed that he was asked to leave because the mother was under the influence of alcohol.
Exhibit ICL8 includes a police LEAP report summarising an incident which occurred at the home of the parties on 2 March 2012, at which the police attended. The report states that the mother had approached the father in the lounge room and began a verbal argument, wanting to know the status of their relationship. The summary records that the mother
… was moderately affected by alcohol. Both parties have begun to argue this point, no violence or threats of violence made by either party. Both parties have then contacted police. Police attended and [the father] has agreed to leave the house for the night and stay with family. Both children were asleep and did not witness the incident. Police have nil safety concerns …
The father conceded in cross-examination that since the shared care arrangement had been in place, the children had become more settled, though he described two instances during 2014 where the mother had been uncooperative and failed to facilitate his relationship with the children. The first involved the children’s First Holy Communion and the second involved a school open day.
In relation to the first incident, the father complained about the mother’s behaviour towards him on the occasion of the children’s religious ceremony when she refused to allow him to have his photograph taken with the children at the religious centre.[15] His account of the events on this day was corroborated by his new partner, Ms K, during cross-examination at trial.
[15] Affidavit of the father sworn 1 July 2014 at [182] – 195].
During cross-examination, the mother conceded that she would not allow the children to have their photographs taken with the father on that day. Her explanation was that it was not prearranged and when pressed, she stated that she would not allow it because she was being intimidated by the father and his family on the day.
The father also complained about a second incident relating to an open day at the children’s school, about which he deposed
On February 18 2014 the children’s school was having an open day for parents to see the children in their classroom and to meet their teachers.
At about 1.30 pm I received a call from the school’s administrator, [Ms N], where she informed me that the Respondent/Mother had threatened to call the police if I attended the open day. The Principal, [Mr O] then called me and informed me that I had every right to attend the open day as per the court orders.
I attended the school at 4.40 pm but I was informed that the Respondent had come and collected the children. …[16]
During cross-examination, the mother denied making any phone call to the school and stated that she had no intention of attending the open day because she had taken the children for swimming lessons. There was no evidence to support the father’s claim about the mother’s phone call to the school.
The general tenor of the father’s evidence was that the mother has taken the children to numerous professionals and encouraged the children to make false allegations of abuse against him. He claimed that she made false statements to the police about him being violent towards her during the relationship. He also complained of the mother causing police to attend at his home because she had made a false report about him possessing firearms. He stated that this was witnessed by the children and that they were very upset. In corroboration of the father’s claim, counsel for the Independent Children’s Lawyer tendered a police LEAP report[17] indicating that the father’s home was searched for a handgun under the provisions of the Family Violence Protection Act 2008 (Vic) in September 2013 and that no firearm was located within the premises and the father denied possessing any firearm.
[17] Exhibit ICL2.
Assessment of the father
I accept the father as generally truthful but prone to exaggeration about the mother because of his negative views towards her and his suspicion of her motives. He was prepared to concede that “in heated moments” he had called the mother names although stated that the verbal denigration was mutual. He did not deny that he had smoked marijuana in the past when he was a young man and was prepared to concede that he used cannabis intermittently until 2000.
An example of the father’s suspicion of the mother’s motives was his attitude towards the mother when she contacted him in November/December 2013 offering him the care of the children in priority to her relatives because she had a back injury. He insisted that she had not provided him with a medical certificate about her back injury and when asked if he was prepared to give the mother credit now for contacting him to care for the children, he stated:
“We don’t know why she couldn’t look after them.”
The father was prepared to concede in cross-examination that he had told the family consultant that the mother had moved the children from their previous primary school because the mother had fabricated an allegation that C had been “interfered with by a boy”.
The father attempted to portray the mother in a bad light and exaggerated some issues in discussion with the family consultant. This left the family consultant with the impression that the mother had fabricated an issue with C at school as an excuse to remove the children from the school. The father conceded during cross-examination that the change of school for the children was a joint decision and that he had not conveyed this to the family consultant. The issue about the change of school was not a matter of significance in the trial, but demonstrates that the father was not entirely truthful in his account of events.
Overall however and particularly in comparison with the mother, the father appeared to be an honest witness prepared to make reasonable concessions.
The father’s partner
The father’s partner, Ms K, is aged 40 and self-employed. She deposed in her affidavit affirmed 8 August 2014 that she does not live with the father but visits on week nights and weekends and spends time with the children assisting them with homework, getting them ready for school and making dinner. She deposed that she reconnected with the father in mid-October 2012, having known him when she was aged 15 when they had worked together after school.
She met the two children for the first time in October 2013. She deposed:
I feel I have a great relationship with [Mr Ortona’s] children and I am very pleased they have accepted me. I look forward to seeing them and have grown very fond of them.
She deposed to finding creative activities to engage the children and to having a common interest with B in computers, technology, music and gaming maps and to enjoying drawing with C.
Ms K gave oral evidence of having discovered emails between the mother and the children that had been exchanged through her computer when she was asked by the father to check the children’s activity on the Internet through ‘KidLogger’, a program that enables parents to check the history of their children’s Internet use. She confirmed that the emails which she brought to the attention of the father were set out in Exhibit A. During cross-examination, Ms K denied that she had manipulated the emails allegedly sent by the mother. She conceded that she has the capacity to manipulate emails, but her evidence was that she would require access to an avatar of the mother which she did not have.
The mother did not accept that these emails were from her account and objected to the admission of the material. I place no weight on these emails (Exhibit A) as there was insufficient evidence to support the assertion that the emails were sent by the mother.
In cross-examination Ms K confirmed that she has taken the children to and from school with the father.
She stated that the father has not been aggressive with the children in her presence, having only raised his voice and been firm with them when appropriate and chastised them from time to time.
In relation to allegations that B is kept isolated in his bedroom when he spends time at the father’s house (which are discussed further in this judgment), Ms K stated that there are no locks on the bedroom doors and that B goes to his room himself rather than being told to go there.
Ms K’s evidence was that if the children mention their mother to her she encourages them. She said that she does not speak negatively of the mother to the children.
She stated that she had no firm plans with the father because of the current proceedings. She stated that she has not met the mother, although she received an email from the mother in February 2014 saying she was “doing a great job” but she did not respond.
Her evidence about the conduct of the mother at the church on the occasion of the children’s First Holy Communion corroborated the account of the father. I accept her evidence that the mother left the church immediately. I accept her evidence that when the father, and then she, called to C asking her to return to the church for a photograph with the father, the mother yelled out, “Don’t you get it, the children don’t want a photo with you.” I also accept her evidence that C then said to her father, “We don’t want a photo.” This is a clear example of the effect the mother’s influence over the children which affects their relationship with the father.
Ms K impressed as an honest and genuine witness who appreciated the seriousness of the conflict between the parents. I accept her evidence that she is supportive of the father and has a good relationship with the children. I also accept that she has been restrained and attempted to refrain from involving herself in the parties’ conflict.
The mother
In her trial affidavit, the mother deposed: “I strongly deny that I have made any false allegations nor have I attempted to alienate the children from [the father].”[18]
[18] Affidavit of the mother sworn 23 July 2014 at [93].
During cross-examination by the father, the mother conceded that her principal concern about the father was his past violence towards her during their relationship. She stated that she was not concerned about the father harming the children when he spent time with them in her absence. She agreed that there was volatility between the parties during their relationship and this did not extend to the children. This was her explanation for not opposing the father spending substantial time with the children.
After the separation, on 25 September 2012 the mother made a detailed statement to police alleging episodes of family violence by the father against her over the years.[19] In that statement the mother complained of the following:
When [Mr Ortona] first started using physical violence towards me, it was only ever a push or slap. Over time it has escalated to broken bones, bruises, damaged teeth and ongoing physical damage to me. It was never in front of anybody, only the children. As the children got older, the physical assaults occurred when the children were in bed, or away from where the children were located in the house. There has been an ongoing stream of instances over the years, some I saw a doctor for, a lot I just covered up (bruises go away). [Mr Ortona] would often make verbal threats about taking my children, making me disappear, harming me and no one knowing.
[19] Affidavit of the mother sworn 23 July 2014 at Annexure DBP 22.
The mother alleged that some of these incidents were witnessed by the children. These allegations were investigated by the police and no charges were laid.
Eight months after making the statement to police, the mother obtained a report from her medical practitioner, Dr P, stating that injuries she had sustained between 2005 and 2012 were consistent with family violence.[20] Other injuries to which Dr P referred were burns to the mother’s right forearm in 2009; neck pain and whiplash in 2011; and a fractured left thumb in 2012. Dr P’s letter included a reference to 9 May 2008 when the mother presented with “concussion, head & teeth injury, multiple bruising & rupture of a breast implant.”[21] As an Annexure only to the mother’s affidavit, this document is inadmissible. Dr P was not a witness in the trial and without the opportunity for the father and Independent Children’s Lawyer to test his evidence, I am unable to give any weight to his letter.
[20] Affidavit of the mother sworn 23 July 2014 at Annexure DBP 23.
[21] Affidavit of the mother sworn 23 July 2014 at Annexure DBP 23.
The father’s version of the May 2008 event acknowledged that the mother had been assaulted but that the perpetrator was a person trespassing in the front yard of their property. A police LEAP report from 8 May 2008 corroborates the father’s story; the trespasser was in fact arrested by police on the night in question. The summary of the incident in the report refers to the mother as the victim and referring to a trespasser as the defendant states:
… The defendant in this matter walked into the front yard of the victim’s house to urinate. At this time the front yard sensor activated. The defendant finished urinating and was walking to the front gate to leave the premises. At the same time the victim was walking out the front to investigate. The next thing the victim realises is that the defendant has punched her to the left side of her face causing immediate pain. From the force of the strike the victim and the defendant both fell to the ground. The victim called out for her husband who shortly attended the location and called police.
The mother denied that this incident had occurred at all and suggested that she had been injured by the father, relying on Dr P’s report. Because the report is inadmissible this course is not open to the mother.
Counsel for the mother made much of this explanation by the father in
cross-examination of Dr H and suggested to the father that this incident never occurred. Counsel for the mother suggested that the father had misled
Dr H about this incident. The police report had not been tendered in evidence at the time of this cross-examination.
When the parties separated on 30 August 2012, the police issued a safety notice against the mother and she was required to leave the house. The police obtained an intervention order against the mother on behalf of the father and the children. A condition of the intervention order against the mother dated
27 September 2012 was that she must not be under the influence of alcohol when in contact or communication with the children.[22] Exhibit ICL8 includes a Victoria Police LEAP report from that evening which records that the police took a statement from the father wherein he claimed that the mother had elbowed him in the chest, stepped on his left foot and kicked him on the left shin but that there were no visible injuries. The LEAP report records that the mother was excluded from the address after returning home to the father and children alcohol affected, at which point a minor verbal dispute occurred.
[22] Affidavit of the mother sworn 23 July 2014 at Annexure DPB.
Assessment of the mother
During cross-examination by the Independent Children’s Lawyer, the mother was evasive and expansive. On numerous occasions she was non-responsive and insisted on providing accounts which amounted to arguments in support of her case. She failed to grapple with direct questions and at times her responses in cross-examination bordered on the incomprehensible. The inconsistencies in her evidence were notable. Examples of these propensities on the part of the mother appear below.
During cross-examination, the mother’s responses to questions from the father demonstrated an attitude of hostility towards him as well as an inability to concentrate on the questions. Her responses to questions in relation to the property matters were inconsistent and confused.
It was difficult to understand whether the mother was alleging that the father had been violent towards the children because the mother maintained at various points during cross-examination that she had absolutely no concern about the father being a danger to the children. The mother’s insistence upon references to past allegations which had been investigated by the authorities seemed incongruous in the context of her case that the father would not harm the children. The mother continued to return to allegations which she seemed to accept had been misinterpreted or invalidated.
The mother was in the witness box for an extraordinarily long time; she was cross-examined over the course of four non-consecutive days in a trial that in total took 10 days. This was due to the fact that the mother was an unresponsive and uncooperative witness and her evidence was often inconsistent and exaggerated. The serious incongruities in the mother’s evidence lead me to the conclusion that her evidence must be treated with extreme caution. Altogether, I find that the mother is an unreliable witness.
For convenience and in the interests of being succinct, I will focus on only a few examples that are illustrative of the mother’s approach as a witness that have led me to make this adverse credibility finding.
Furthermore, during the cross-examination of Dr H, the mother sought an indulgence from the Court by requesting that she be permitted to temporarily lie down along the seating at the back of the Court because she had ear drops for an ear infection. It was never suggested that this would be to sleep. This request was granted and she had a support person seated beside her in Court at the time. Subsequently, during the mother’s cross-examination by the Independent Children’s Lawyer, the mother was asked a question about
Dr H’s evidence. The mother’s response was to suggest that she might have been asleep during that evidence. This is an example of the mother refusing to acknowledge the assessment of professionals.
The glass table incident
One of the mother’s allegations to which there was frequent reference, despite it not being included in any affidavit material filed for this trial, appeared to be from 2005; I will refer to this as the “glass table incident”. The mother’s friend,
Ms J, had made a sworn statement[23] to the police dated
25 September 2013 in which she stated:
In December 2005, I received a frantic phone call from [Ms Peters], who was in Queensland for Christmas. [Ms Peters] informed me that [Mr Ortona] had thrown [B] through a glass coffee table. [Ms Peters] told me that she had spent the day picking glass out of [B]. I told [Ms Peters] to ring an ambulance or go to the local hospital, and [Ms Peters] informed me that [Mr Ortona] would not allow her to, and that he had hurt her when she tried to.
[23] This statement was annexed to an affidavit of the mother from the Federal Circuit Court proceedings, sworn on 10 October 2013.
When cross-examined about this, the mother admitted during the trial that she had told Ms J that the father had thrown B through the table “on the pretext that I believed that’s what had happened.” After conceding during cross-examination that she did not actually see the father throw B through the coffee table because she was in bed at the time, the mother then suddenly claimed: “I don’t actually believe I ever suggested [Mr Ortona] threw him through the glass coffee table. … I suggested that he fell through the glass coffee table.” She went on to state that she believed that “a child dancing on the glass … while dad was watching cricket, could easily fall through the coffee table.”
The mother would not admit that any of this information was contradictory.
Counsel for the Independent Children’s Lawyer then directed the mother to various professionals’ reports completed during the course of the proceedings in order to point out occasions where it appeared that she had told people that the father had thrown B through a coffee table. These included the reports of:
a)Mr Q, an occupational therapist at the Alfred, who completed a Mental Health Assessment[24] of C after assessing her between April and June 2013 and interviewed both parents on more than one occasion. Mr Q wrote in his report: “[Ms Peters] said ‘she felt terrible telling the children stories about their father’. She said that he had pushed [B] into a coffee table”. Furthermore, Mr Q’s report also says that the mother believed B’s enlarged spleen was the result of him being thrown into a coffee table.
b)Dr H’s report, which described the mother as having told Dr H that “[Mr Ortona] … had shaken C and pushed B through a glass table.” [25]
c)The Notice of child abuse, family violence, or risk of family violence (Form 4) filed by the mother’s solicitors in the Federal Circuit Court on 15 May 2013, which details the claim that on 16 April 2013 B told Dr R, within his mother’s hearing, that his father “had thrown him into a coffee table some years ago”.
d)Exhibit 6, a DHS first visit case note dated 31 July 2013, which stated that B’s interview he reportedly said: “Sometimes dad hurts me. I still have scratches on my back from when dad threw me through the coffee table.”[26]
e)Exhibit ICL7, the DHS case closure summary from 28 August 2014, which also contains a suggestion that B’s injured spleen was the result of having been thrown through a coffee table by the father. However, the mother’s own trial material reveals that Dr R found that the problem with B’s spleen was probably a viral response.[27]
[24] Exhibit ICL1 at page 3.
[25] Affidavit of Dr H sworn 22 January 2014 at page 8.
[26] Exhibit ICL6 at page 3.
[27] Affidavit of the mother sworn 23 July 2014 at Annexure DPB 20.
The mother had a plethora of explanations for the various statements made however I note that she could not acknowledge the inconsistency in her evidence and find that this highlights her capacity to elaborate and exaggerate and causes me to question her evidence
Police attendance at the parties’ home in March 2012
The mother deposed that on 3 March 2012 (actually 2 March 2012, based on the Victoria Police LEAP report[28]) the father was abusive towards her in the presence of the children and had threatened to kill her and the children. Her affidavit states that:[29]
As a result I barricaded the children and myself in my bedroom and then I telephoned Victoria Police. The police attended at our home and spent some time calming [Mr Ortona] down. The police then asked [Mr Ortona] to leave. The police suggested to me that I get the locks changed on our home as I was concerned that [Mr Ortona] would return.
[28] Exhibit ICL8.
[29] Affidavit of the mother sworn 23 July 2014 at [34].
During cross-examination by the father, the mother elaborated on this alleged incident in the following manner:
On the triple zero telephone call, I was locked in the front bedroom with my two children, bawling my eyes out, telling them that you were going to kill me. Six police officers armed with vests attended the house and arranged for you to be removed from the home.
However, the police LEAP report from the night in question states that “[n]o violence or threat of violence was made by either party” and that “[b]oth children were asleep and did not witness the incident. Police have nil safety concerns and informal referrals were made on this occasion.”
When the mother was given an opportunity to explain the discrepancy between her own report and that of the police, the mother again misdirected her response, digressing as follows:
… during that night, I rang my friend, [Ms S], which is in the report, and she attended that house after I was threatened to be killed and told me to ring the police. She was present when the police came and she negotiated with the police that night on my behalf about the attempted threats to kill.
In regard to this incident, the mother did thereafter concede that her affidavit and the LEAP report were inconsistent. This discrepancy illustrates the mother’s penchant for exaggeration which again calls all of her evidence into question.
The alleged “hand-stepping” incident
The mother deposed that on or around 13 March 2013, B’s general practitioner ordered an ultrasound which revealed that B had an enlarged spleen.[30] According to the mother, she was informed by Dr R that “any significant abdominal trauma or violence can be significantly deleterious to [B’s] spleen”.[31]
[30] Affidavit of the mother sworn 23 July 2014 at [25].
[31] Affidavit of the mother sworn 23 July 2014 at [26].
I accept the evidence of the husband, supported by the bank statements, that he made contributions to the mortgage for the BB Street property for the period between November 2004 and January 2005. I accept the evidence of the wife that she made all the financial contributions towards that mortgage until the period between November 2004 and January 2005.
The husband’s evidence was that in January 2005 he sold the Suburb AA property and contributed the net proceeds of sale of approximately $55,000 towards reducing the mortgage on the wife’s BB Street property. This was conceded by the wife.
I find that the parties’ contributions to the repayment of the mortgage on the BB Street property were roughly equal from November 2004, but the wife made the more significant contribution initially. However I also accept that the husband paid the living expenses of the parties.
In late 2005/early 2006, the parties purchased the F Street property for $502,000. The property is registered solely in the husband’s name; however, the parties agreed that the net sale proceeds of the BB Street property in the sum of approximately $297,000 were contributed for the purchase of the property at F Street. The parties obtained a mortgage over the F Street property in the husband’s sole name in the sum of $230,000.
The wife deposed, without any corroborating evidence, that she had a mortgage of approximately $85,000 for the BB Street property. The evidence about the mortgage was not clarified any further. Accordingly the only evidence is that the net proceeds from the sale of the BB Street property of $297,000 were contributed to the purchase of the F Street property. The husband and wife had both contributed financially to the BB Street property and the husband had made an initial contribution of $55,000.
The parties agreed that the husband paid all of the mortgage repayments for the F Street property and the garages and outgoings as they fell due. However the wife deposed that in 2011 she applied the sale proceeds from her motor vehicle in the sum of $8,000 to the reduction of the mortgage. [51] In the absence of corroborating evidence from the wife, I am unable to accept that proposition.
[51] Affidavit of the mother sworn 23 July 2014 at [111].
The husband agreed that the wife had a European motor vehicle at the beginning of the relationship but maintained that he purchased that vehicle from the wife for $5,500 on 25 October 2005 and produced a receipt and transfer which the wife acknowledged as correct in cross-examination.
In cross-examination of the wife by the husband, the wife confirmed that the date of “2011” in her evidence was incorrect and she had in fact sold the car in approximately 2005 to the husband. Without explaining what happened to that money she said that, although she did not have access to any of the husband’s bank accounts throughout their time together, she assumed that the money was placed into one of his accounts.
There was clear evidence from the husband, accepted by the wife that he paid the wife for her vehicle. The wife’s evidence was unclear as to what she did with that money. I cannot accept the wife’s evidence that $8,000 was contributed by her to reduction of the mortgage for the F Street property as a result of the sale of her motor vehicle.
Furthermore, the wife deposed that the mortgage was increased from $230,000 in 2006 to $373,000 and that “[Mr Ortona] has failed to account to me for the increase in the home loans nor informed me as to the use he has made of those monies.”[52] The wife conceded during the trial that the mortgage was increased in March 2010 to purchase a motor vehicle and that the husband gave her $8,000 at her request in June 2011.
[52] Affidavit of the mother sworn 23 July 2014 at page 46-47.
The husband deposed in his trial affidavit that the mortgage was increased at various times during the relationship “to fund various projects, to fund family expenses such as holidays and to pay for the Respondent’s expenses, when she asked for funds.”[53] He deposed to bathroom renovations and building works at the rear of the home in 2008 and kitchen renovations between 2009 and 2011, all of which he stated that the wife was aware.[54]
[53] Affidavit of the father sworn 1 July 2014 at [240].
[54] Ibid at [241]-[243].
It would appear that the mortgage was extended to provide the wife with funds for the purchase of another vehicle but the evidence was unclear about this. On the available evidence I can take this issue no further.
The parties purchased the garage at 2 G Street, Suburb D, in 2011 and registered it solely in the husband’s name. The husband took out a home loan in order to purchase the garage and it is not disputed that he has met all mortgage repayments as they have fallen due. Ms J rented the garage from the parties for the sum of $45 per week. I accept the evidence of the husband that this has been paid to the wife since October 2012. The rental received by the wife post-separation is income from the property of the relationship and must be taken into account.
The parties agree that the husband worked full-time throughout the relationship and additionally conducted some work privately in his own business on evenings and weekends. The wife was engaged full-time in the traditional role of homemaker and cared for the children.
The husband’s evidence in his affidavit sworn 1 July 2014 was as follows:
I deny that The Respondent was the primary caregiver for the children for the duration of our relationship as there were many times when The Respondent would go missing for days and I would not know where she was. I had to look after the children on my own for the duration of those periods.
He deposed that from August 2011 until separation, a period of approximately one year, he became the primary carer of the children. His evidence was that he took more responsibility for childcare before and after school and that he was often required to leave work early and use sick leave to collect the children from school. The wife disputed this.
The wife’s evidence was that she was the primary carer of the children for the duration of the relationship. She disputed the husband’s evidence about his level of involvement in caring for the children throughout the relationship. She deposed in her trial affidavit that:
… when [Mr Ortona] was at home in the evenings he was usually working in relation to his business and unavailable to the children and myself. [Mr Ortona] became very angry if he was interrupted by the children or me whilst he was working.[55]
[55] Affidavit of the mother sworn 23 July 2014 at [65].
In cross-examination the husband conceded that the wife was the primary carer of the children until about March 2011 when the wife started working. He also gave evidence that the wife was attending bottle shops in school holidays and he had to take one week leave in school holidays to care for the children. He did not provide any documentary evidence in support of this proposition and there was other evidence that C was in vacation care during the school holidays. The husband also stated in evidence that the wife worked from 2006 to 2008 selling on Ebay and with backpackers.
I accept that the wife was the primary carer of the children and homemaker during the relationship of about 10 years. She made a significant non-financial contribution to the welfare of the family in this role. This does not overlook the fact that both parents contributed towards the care of the children and as homemakers.
I accept the evidence of the husband that he undertook a greater role as carer of the children and homemaker towards the end of the relationship in 2011. As such the husband has also made a non-financial contribution to the welfare of the family from about March 2011, a period of over one year.
The husband has also made a financial contribution post-separation in the payment of the mortgage, although the payments were reduced to interest only payments.
On the other hand, the wife has paid for rental accommodation since separation and this must be taken into account as the husband has been living in the F Street property since separation.
Overall I find that the parents have made an equal contribution to the equity in the F Street property after it was purchased. Conceded by the husband is the fact that the wife made a more significant financial contribution to the purchase of the BB Street property, the sale of which comprised the funds for the purchase of the F Street property. However that initial financial contribution cannot be quantified on the evidence.
Doing the best that I can on the available evidence, I find that the contributions of the parties were equal at the date of the trial. During the 10 year relationship they each made contributions of various kinds recognised in the legislation. Both did their best to fulfil their respective roles. In the circumstances of this case, the initial contribution of the wife should not assume a more significant status over the 10 year period of the relationship and the joint enterprise.
Section 90SF(3) of the Act
Pursuant to 90SM(4)(e) of the Act, I must take into account the matters referred to in s 90SF(3) insofar as they are relevant. The matters relevant to these proceedings are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(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; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) 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; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) 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; and
(g) a standard of living that in all the circumstances is reasonable; and
…
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
…
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
…
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
…
The husband is engaged in full-time employment and at the age of 42 is in good health. The wife is aged 44 but has not worked in full-time paid employment since July 2002. She deposed in her trial affidavit that: “since 2003 until the date of separation in 2012 I have only undertaken some limited casual part time work during school hours by selling items on e-bay.” She deposed that she no longer holds a relevant professional licence and would need to work full-time for two years and complete some coursework in order to be eligible to apply for a licence.
In cross-examination, when the wife was asked about some employment during the marriage between March and August 2011, she conceded that she worked from home part time during the marriage but that she was not paid for that work and made a complaint to the Ombudsman.
Ms E recorded in her Family Report dated 2 June 2014 that the wife reported that she spends “3 hours a week, working at [CC Pty Ltd], providing … assistance …” and that she volunteers three mornings per week. In cross-examination the wife’s evidence was that she mainly helps her friend with emails but that she works from home and does not have the computer skills which would be required in a workplace. Her evidence is that she continues to suffer from symptoms of post-traumatic stress disorder. Taking the husband’s case at its highest the wife worked for five months part-time but there is no evidence that she was paid for this work.
I find that the wife was the primary carer of the children during the relationship until about March 2011 when she started working. There is no evidence that the wife was paid for this work and the husband did not challenge the wife’s evidence that she was not paid. I accept her evidence that she devoted much of her time since the birth of B tending to his special needs and that in the early years after the birth of the children, the husband was busy working full-time during the day and working at night in his private enterprise.
Although not adduced in admissible form, I accept that the wife has been diagnosed with post-traumatic stress disorder, which is improving. I also accept that her qualifications have not been updated as a result of her full-time care of the children during the early years of the relationship which included attending to B’s special needs.
The husband conceded that he had the capacity to earn about $86,000 per annum if he worked full-time. He has been in stable employment since 1997. In contrast to the wife, his employment history has not been adversely impacted by the primary care of the children.
The wife deposed that her income is $588 per week from Centrelink and $45 a week from the rent of a garage. Although in cross-examination the wife denied that this was an accurate reflection of her income as the person renting the garage, Ms J, had not paid the rent for 18 months to two years. The husband queried the wife as to her bank statements, which indicate $45 per week being credited to her account. The wife claimed that this money was “[f]or ironing.” Having regard to my previous findings, I am satisfied that the wife is receiving $45 a week from the rent of the garage. I note that this income will no longer be available when the garage is sold.
I accept that the husband’s capacity for employment is greater than that of the wife who has not been in paid employment since approximately 2003. I accept the submission of the husband that the wife would appear to maintain some connections with her former profession through casual work. There was no evidence that the wife is unfit for employment.
I accept that the husband has a greater capacity for employment and is in a better financial position than the wife. However the husband will now have the majority of the responsibility for the care and accommodation of the children. It is unlikely that the wife will be assessed to pay child support on the available evidence. The financial support for the children will therefore continue to fall to the husband.
The husband did not provide any evidence that the prospect of his increased responsibility for the care of the children may impact on his employment. He gave evidence that his new partner would assist with the care of the children and I note that she is self-employed.
I find that in October 2012 Ms J commenced paying rent directly to the wife, who used the monies for living expenses for herself and the children. I accept the husband’s proposal that I take into consideration pursuant to
s 90SF(3)(r) of the Act that the wife has solely had the benefit of the rent of $180 per month paid to her since separation, being a period of approximately two years.
However, on the other hand, the husband has had the benefit of accommodation in the F Street property for that same period of time. The husband reduced the mortgage payments to interest only payments. For approximately two years the wife has used her limited resources to pay for rental accommodation.
In these circumstances both parties have received financial benefits from jointly owned assets post separation.
Furniture
The wife did not seek that any of the furniture retained by the husband be transferred to her. She proposed that the value of the furniture be taken into account as a factor in her favour under s90SF(3) of the Act. I take into account that the husband has retained jointly owned furniture with an agreed value of $12,000.
Husband’s legal fees paid pre-separation
There were no submissions made about the wife’s legal fees and it would appear that they have not been paid from joint funds.
The husband’s family law legal fees have diminished the value of the total property of the parties.[56] I take into account as a relevant factor that the husband spent $10,139 from joint funds on legal advice about family law matters prior to separation. It is not appropriate to enter into a mathematical exercise when considering this factor.
[56] Daines & Daines (Costs) [2014] FamCAFC 170 at [21]-[25].
However, I have regarded this payment of legal fees by the husband as a fact or circumstance which the justice of the case requires to be taken into account under s 90SF(3)(r) of the Act.
Insurance payment to the husband post-separation
After separation, the vehicle that the husband had been driving was damaged beyond repair. He received $19,000 from the insurance company post-separation. The husband’s evidence was that he used that amount for living expenses. I accept his evidence in relation to this relatively small amount and that it was used for reasonable living expenses. There was no evidence to the contrary.
In any event, it was common ground that the parties purchased a vehicle for the use of the wife just prior to separation. The $25,000 component of the wife’s credit card liability was used to purchase that vehicle just prior to separation. The parties have agreed to the discharge of this debt from the proceeds of sale and the husband has accepted part of this liability.
The wife has retained this vehicle by agreement.
The $19,000 has been spent and is neither an asset nor a liability of the parties.
In these circumstances, I do not regard the receipt by the husband of $19,000 as a factor to be taken into account.
In summary the relevant s90SF(3) factors are:
·The greater income earning capacity of the husband;
·In all likelihood the husband’s sole financial responsibility for the support of the children and the greater portion of time spent caring for the children;
·The furniture to be retained by the husband, but on the other hand this will also be used by the children;
·The husband’s legal costs of $10,139 paid from joint funds post separation.
Having regard to these s 90SF(3) factors, I have concluded that it is appropriate to make an adjustment in favour of the wife of five per cent of the non-superannuation assets.
Conclusion
I am not satisfied, on the balance of probabilities, that the wife has proved her case that there is a liability to Ms J for a loan.
This was a de facto relationship of about 10 years duration. The parties have made equal contributions to their property during the course of the relationship. I regard the wife’s non-financial contribution as the primary carer as being equal to the husband’s financial contribution to the mortgage payments and living expenses during the relationship.
I also take account of the fact that the husband will have the full-time care of the children with the exception of half the school holidays and alternate weekends. In all likelihood he will also have the financial responsibility to support the children.
Overall I am satisfied that there should be a division of the parties’ non-superannuation assets of 55 per cent in favour of the wife and 45 per cent in favour of the husband.
This distribution also takes account of the factors under s 90SF(3) of the Act, which favour the wife, and also the fact that the husband has agreed to equalise the parties’ superannuation.
There is no evidence of the costs of sale and commission on sale but using the agreed valuations, the net non-superannuation assets amount to $578,545. Accordingly in approximate terms the effect of the orders would be a 55 per cent distribution to the wife of $318,198.75 and a 45 per cent distribution to the husband of $260,345.25.
I am satisfied that it is just and equitable to alter the parties’ interest in property as previously outlined including the agreement of the parties as to superannuation.
Costs of Dr H’s report
The husband seeks that the wife pay to him half of the costs of Dr H’s psychiatric assessments of the parties. The husband has paid $5,000 for this report. He claimed that the solicitors for the wife had agreed that the wife’s half share for that report would be paid from the wife’s share of the proceeds of the property settlement. Order 4 of the interim orders made by Judge O’Dwyer on 23 August 2013 provided for each party to bear the costs of the report.
This expense arises out of the parenting proceedings and, accordingly, an order is made that the wife pay the amount of $2,500 to the husband for her half share of the costs of that report. Counsel for the wife conceded that this amount should be paid by the wife to the husband from the wife’s share of the proceeds of sale of the property.
Costs of the Independent Children’s Lawyer reserved
The Independent Children’s Lawyer sought that the legal costs for the hearing in respect of the recovery order on 30 December 2014 be paid by the wife.
Those costs were fixed and reserved in the sum of $534.
Accordingly as the wife has not been heard on this issue, failing agreement, orders are made for written submissions to be filed by the Independent Children’s Lawyer and the wife so that the question of the payment of those costs can be determined expeditiously in Chambers without the need for any further expense.
Any judgment on costs is to be determined on the written submissions in Chambers unless a party seeks to make an oral submission in addition to a written submission.
I certify that the preceding four hundred and twenty-one (421) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 26 February 2015.
Associate:
Date: 26 February 2015
ANNEXURE A
Documents relied upon by the applicant father:
·Amended initiating application filed 11 August 2014;
·Amended financial statement of the father sworn 29 July 2014;
·Affidavit of the father sworn 1 July 2014;
·Affidavit of the father in response sworn 30 July 2014;
·Affidavit of Ms K sworn 8 August 2014;
·Application in a case filed 29 December 2014;
·Affidavit of the father sworn 29 December 2014;
·Affidavit of service sworn 30 December 2014; and
·Response to the mother’s application in a case filed 6 February 2015.
Documents relied upon by the respondent mother:
·Amended response filed 23 July 2014;
·Amended financial statement of the mother sworn 23 July 2014;
·Affidavit of the mother sworn 23 July 2014;
·Amended application in a case filed 2 February 2015; and
·Affidavit of the mother sworn 27 January 2015.
Documents relied upon by the Independent Children’s Lawyer:
·Family Report of Ms E dated 2 June 2014;
·Memorandum of Ms E dated 12 July 2013;
·Psychiatric assessments of Dr H dated 15 November 2013; and
·Family Report of Dr L dated 21 January 2013.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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Costs
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Consent
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Remedies
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Res Judicata
0
4
7