PAPKE & PAPKE
[2020] FCCA 2236
•14 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAPKE & PAPKE | [2020] FCCA 2236 |
| Catchwords: FAMILY LAW – Parenting & Property – family violence by father – post separation campaign of threats, harassment and intimidation of the mother, the mother’s solicitor, the Independent Children’s Lawyer and the family therapist – repeated breaches of Court Orders – father is an unacceptable risk – Orders made for no time and no communication – extensive injunctions ordered to protect the mother, children, legal practitioners, family therapist, and other persons associated with the mother and children from ongoing harassment – referral of papers to Commonwealth Director of Public Prosecutions. |
| Legislation: Family Law Act 1975 (Cth), pt.VII, ss.4AB, 60CA, 60CC, 60CC(3), 60CG, 65AA, 68B, 68C, 75(2), 79, 79(4), 81, 102NA, 114, 117, 117(2A), 117(4), 117(5), 121 Evidence Act 1995 (Cth), ss.128, 140(1), 140(2), 144(1)(b) |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 M v M (1988) 166 CLR 69 B & B (1993) FLC 92-357 at 79,778 Stott & Holgar and Anor [2017] FamCAFC 152 at [37] Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74 Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78 Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 Horrigan & Horrigan [2020] FamCAFC 25 at [35] Singerson & Joans [2014] FamCAFC 238 Dickons v Dickons (2012) 50 Fam LR 244 Marsh & Marsh (2014) FLC 93-576 Lovine & Connor and Anor (2012) FLC 93-515 at [39]-[42]) Sexton & Sexton [2012] FamCAFC 218 at [72]; Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] CDJ v VAJ (1998) 197 CLR 172 Malpass & Mayson [2000] FamCA 1253) In the Marriage of P & P (1985) 9 Fam LR 1100 |
| Applicant: | MS PAPKE |
| Respondent: | MR PAPKE |
| File Number: | SYC 1454 of 2017 |
| Judgment of: | Judge B Smith |
| Hearing dates: | 2-4 December 2019 |
| Date of Last Submission: | 4 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 14 August 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mrs Mahony |
| Solicitors for the Applicant: | McDonnell Schroder |
| Counsel for the Respondent: | Mr Flanigan |
| Solicitors for the Respondent: | F W Ewart & Ewart |
| Counsel for the Independent Children's Lawyer: | Mr Sperling |
| Solicitors for the Independent Children's Lawyer: | Holmes Donnelly & Co Solicitors |
ORDERS
Parenting
The mother, Ms Papke born in 1983 (“the mother”), have sole parental responsibility for making decisions about the long term care, welfare and development of the children, X born in 2008 and Y born in 2009 (“the children”).
The children shall live with the mother.
The children shall spent no time and have no contact with the father, Mr Papke born in 1978 (“the father” or “the husband”).
The children shall have no communication with the father.
The mother be permitted to apply for an Australian passport for each of children without seeking the consent of the father and for the purposes of this Order, the mother shall have sole parental responsibility to apply for and execute any application for passport for the children, X born in 2008 and Y born in 2009.
The children’s Australian passports be retained by the mother.
The children be permitted to travel overseas with the mother.
The father pay the sum of $7,586.70 towards the costs of the Independent Children's Lawyer.
The mother shall pay $5,276.70 towards the costs of the Independent Children's Lawyer.
Property
The parties forthwith do all acts and things necessary to cause the $491,342 proceeds of sale of the former matrimonial home currently held in a controlled monies account to be paid to the parties in the following manner in no less than 29 days from the date of these Orders and in no more than 42 days from the date of these Orders:
(a)$340,155.80 to the mother;
(b)$151,186.20 to the father; and
(c)As to any additional sum in the controlled monies account over $491,342, it be distributed to the parties as to 70% to the mother and 30% to the father.
If within 21 days of the date of these Orders the mother files and serves an Application in a Case seeking costs, then Order 10(b) above shall be automatically stayed as to $100,000 of the monies, which shall remain in the controlled monies account pending further Order of this Court, and the father shall instead by paid $51,186.20 and the 30% referred to in Order 10(c).
These Orders provide sufficient authority to the solicitor with control of the monies in the controlled monies account to distribute the monies in accordance with Order 10 above, regardless of the provision of any authority or failure to provide any authority by either party, subject to compliance with the terms of these Orders.
Except as may be otherwise provided herein:
(a)Each party be hereby solely entitled, to the exclusion of the other, to all other property, motor vehicles and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and, for this purpose, bank accounts are deemed to be in possession of the person whose name appears on the bank's record thereof, shares are deemed to be in the possession of the person in whose sole name such shares are registered and insurance policies are deemed to be in the possession of the beneficiary thereof;
(b)The wife be solely entitled to all interests in any superannuation funds of which she is a member;
(c)The husband be solely entitled to all interests in any superannuation funds of which he is a member; and
(d)Each party is hereby solely liable for and shall indemnify the other against any debt or liability in their own name of whatsoever nature or kind.
Injunctions – mother and children
Pursuant to section 68B and section 114 of the Family Law Act1975 (Cth), and pursuant to the Court’s own jurisdiction to grant injunctions, the father be hereby restrained by injunction from doing any of the following things;
(a)Approaching or communicating or seeking to communicate, by any means including directly in person, by post, by any electronic means, or by an agent other than a current legal practitioner, with:
(i) The mother;
(ii) The children; and
(iii)Approaching, in person or through an agent, within 500 metres of;
A.The residence of the mother or of the children or either of them;
B.The mother’s place of employment from time to time;
C.The schools at which the children, or either of them, attend from time to time;
D.Any sporting facility or ground where the father knows or becomes aware the children may attend from time to time as part of their sporting or extra-curricular activities;
E.The church or other religious institutions at which the mother or children, or any of them, attend from time to time;
F.Any of the following addresses:
1. B Street, Suburb C;
2. D School;
3. E School, Suburb F;
4. G Church;
5. Any address of Employer H;
6. The Catholic Education Office;
7. The Catholic Diocese of Suburb J;
8. Suburb K Sports Club; and
9. Suburb F Sports Club.
Injunctions – other persons involved with the litigation
Pursuant to section 114 of the Family Law Act 1975 (Cth), and pursuant to the Court’s own jurisdiction to grant injunctions, the father be hereby restrained by injunction from doing any of the following things;
(a)Approaching or communicating or seeking to communicate, by any means including directly in person by post, by any electronic means, or by an agent other than a current legal practitioner, with, and from approaching within 500 metres of the offices of:
(b)The mother’s lawyer:
(i)Mr L or any employee of McDonnell Schroder, including without limitation:
A.Ms M;
B.Anthony McDonnell; and
C.Ms N.
(ii) The offices at
A.O Street, Suburb P, NSW; and
B.Q Street, Suburb R, NSW.
(c)The Independent Children’s Lawyers;
(i) Mr Duncan Holmes;
(ii) Any employee of Holmes Donnelly & Co Solicitors;
(iii) The offices at S Street, Sydney, NSW;
(iv) Ms T; and
(v) The offices of Claremont Legal.
(d)The Family Therapist;
(i) Dr U; and
(ii) The offices of Dr U.
(e)However, despite the above, the father may communicate with the mother’s solicitor by surface mail concerning any costs application or other matter remaining before this Court or any Appeal Court, and may also reply by email to any email sent to him by the mother’s solicitor, on condition that in either case the father’s email communications will be restricted to the subject matter of any Application or matter before the Court, will not be harassing, intimidating or threatening.
Injunctions – other persons associated with the mother or the children
Pursuant to section 114 of the Family Law Act1975 (Cth), and pursuant to the Court’s own jurisdiction to grant injunctions, the father be hereby restrained by injunction from doing any of the following things;
(a)Approaching or communicating or seeking to communicate, by any means including directly in person, by post, by any electronic means, or by an agent other than a current legal practitioner, with, and from approaching within 500 metres of the offices or residences of:
(i) Mr V;
(ii) Ms W;
(iii) Ms Z;
(iv) Mr AA; and
(v) Mr BB.
The father be and is hereby further restrained by injunction from publishing on the internet or on any social media platforms, any photograph of the children in these proceedings, the names of the children, the name of the mother, the names of any of the people or organisations identified in Orders 14 to 16 above, and any other material which might identify the parties and the children in these Family Law proceedings.
In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act1975 (Cth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
The mother may provide a copy of these Orders to the children’s schools or medical practitioners.
Costs
A party who seeks costs is to file and serve on the other parties address for service, as currently notified to the Court, an Application in a Case seeking costs within 21 days of the date of these Orders and a preliminary affidavit outlining the basis of the Costs Application and estimating the quantum of costs sought.
Referral of papers
That the Registrar of the Federal Circuit Court of Australia forward to the Commonwealth Director of Public Prosecutions, or such other body as may be appropriate, the Reasons for Judgment in these proceedings together with the Transcript, Affidavits and Exhibits relating to the final hearing for a consideration of whether or not Mr Papke should be prosecuted in respect of his conduct referred to in the Reasons for Judgment.
NOTATION
Pursuant to s.81 of the Family Law Act 1975 (Cth), the Orders shall, as far as practicable, finally determine the financial relationship between the parties and avoid further proceedings between them.
Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and those particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Papke & Papke is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1454 of 2017
| MS PAPKE |
Applicant
And
| MR PAPKE |
Respondent
REASONS FOR JUDGMENT
The Applicant in these proceedings, Ms Papke (“the mother”) now aged 37, and the Respondent, Mr Papke (“the father”) now aged 42, met in around 2005. They married in 2007 and commenced cohabitation.
The parties had two children. X, born in 2008 now aged 12 (“X”), and Y, born in 2009, now aged 11 (“Y”) (jointly known as “the children”).
The parties finally separated on 29 March 2016.
The mother commenced these proceedings on 8 March 2017 in respect of both parenting and financial matters. Each party seeks competing parenting Orders within Part VII of the Family Law Act 1975 (Cth) (“the Act”) and each seeks competing Orders to alter their interests in property and to determine and end the financial relationship between them, pursuant to sections 79 and 81 of the Act.
Given the allegations of family violence by the father an Independent Children’s Lawyer (“ICL”) was appointed and an Order made pursuant to s102NA of the Act for representation of the father. This Court also proposed the transfer of this matter to the Family Court of Australia, but that was resisted by the mother and the ICL to avoid loss of priority.
For reasons which will become apparent below, to allow these proceedings to occur without prejudice to the father he was granted Certificates pursuant to section 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”) covering much of his evidence.
Property overview
At marriage the father owned a property at Suburb CC which the parties subsequently moved in to. Both parties had some savings, the father more than the mother. The former matrimonial home was the parties’ only substantial asset at separation.
At the time of the marriage the father was working as a driver of a truck, which was owned in partnership with his family, on an unknown salary or profit share. The mother was working full-time earning about $40,000 per year.
In 2008 the father lost his driver’s licence. From that point in time he was, in effect, a full time student, completing first his tertiary preparation certificate at TAFE, then a course of study in 2013 and further study in 2017. During this time he did some occasional part-time work, including customer service work. The extent of his earnings during the marriage was an issue in dispute.
The mother continued working full-time, throughout the relationship to separation and to hearing.
Although the mother was working full-time it was also agreed that she was the primary carer for both children.
The former matrimonial home was sold post-separation in November 2017.
The total net property pool is $613,854, including superannuation. The majority, approximately 80%, is made up of the $491,342 which remains from the sale of the former matrimonial home after each party received a $50,000 interim distribution.
The parties agreed that the sole question for the Court was the way in which the $491,342 should be distributed, taking into account section 79 contributions and section 75(2) factors.
The affidavit and documentary evidence, the cross examination and the submissions on financial issues were all extremely limited, and the financial issues occupied a very small portion of the hearing. I will deal with this issue after considering parenting.
Parenting
The case, as run, was primarily about the children, X and Y.
It was, eventually, agreed by both the parties and the ICL that the children should live with the mother and that she should have sole parental responsibility. The father’s concession on this issue was solely on the basis that “The parties do not communicate effectively”. I am satisfied this is in the children’s best interests and will make those Orders.
The essence of the mother’s case is that: the relationship to separation was marked by ongoing acts of family violence perpetrated by the father against the mother and the children; and that post-separation the father has engaged in an ever-increasing and unrelenting campaign of harassment, threats and intimidation which have resulted in him being placed on, and then breaching, a New South Wales Court (“NSW”) Apprehended Violence Order (“AVO”) so that he is on a good behaviour bond, and subsequently breaching similar Orders of this Court; and that the children fear being alone with him because of their experience of his conduct; and that his conduct demonstrates that he is an unacceptable risk to the children.
The mother’s primary submission was that, while she acknowledged it would involve a significant loss to them, the children should spend no time and have no contact with the father, with consequential Orders around passports and travel overseas. In the alternative only, the mother proposed that the children spend time with the father for 2 hours, in a public place under paid private supervision, each February, June and October.
The ICL in effect agreed with the mother’s factual case. The mother’s “no time” proposal based on the father being an unacceptable risk was also supported by the ICL, although the ICL proposed that the father be able to write to the children every 3 months with the mother to have the power to determine whether the communications or gifts should be passed on.
Both the mother and the ICL proposed that the injunctions in the current interim Orders directed to restraining the father from sending communications to a range of people and organisations should be continued.
The essence of the father’s case is that he was a good father, that the mother has manipulated the children post-separation which is why they now express a fear of being alone with him, that she has intentionally alienated them from him, and that he has merely done what has been necessary to try and spend time with his children, including by communicating his position to all of the people involved with these proceedings who are standing in the way of his spending time with the children.
In this context it is relevant to note that the father admitted to many of the facts which constituted the mother’s specific allegations of family violence during the relationship. His answer to the allegations in cross examination was that, as his actions were the result of other people making him angry and frustrated, he was in effect justified in his actions, but also offered some faint apologies.
He also admitted to sending the torrent of post separation communications complained of to the mother, and to others. In a similar vein, the father’s position in cross examination was that the emails and other communications he has sent were not harassing, threatening or intimidating, and that even when he continued to send this material in contumacious breach of s made by a NSW Court, eventually resulting in his being placed on a good behaviour bond, and later in breach of Orders of this Court, his actions were justified.
Those concessions substantially simplified the underlying factual issues in the case and provided a valuable insight into the father’s perspective.
The father’s proposal during the hearing was that there should be equal shared parental responsibility and that time should recommence on an unsupervised basis and progress as follows: for 3 months each Sunday for 3 hours per visit at Suburb DD shopping centre; then for 3 months from 10am-5pm each Sunday; then alternate weekends from Friday after school to Sunday 5pm, staying at the Father’s parents residence on an ongoing basis. He also sought special occasion time on Father’s Day, each child’s birthday, and Christmas or Boxing Day.
In final written submissions the father amended his proposal to submit that time with the children “would, at least in first instance, be limited and supervised”, and commence in concert with family therapy and continued psychological assistance for the father. He also raised the costs associated with supervised visits, the expense of family therapy sessions and the ongoing costs of any psychological assistance the father may seek, as potential practical difficulties.
Although the father’s change of proposals was understandable, given the evidence considered below, this presents significant forensic difficulties for the father, as the case was not conducted on this basis, and this option was not addressed in the evidence.
The evidence about parenting fell, broadly, into four different periods.
a)The first was the period until separation on 29 March 2016;
b)The second was the period from separation, when the father initially withheld the children from the mother prior to an informal arrangement occurring, until April 2017;
c)The third was the period from April 2017, when the mother withheld the children from the father and sought Court Orders that he spend only supervised time with the children, until the release of the Family Report dated December 2018; and
d)The fourth was the period from the release of the Family Report in December 2018 until the final hearing in December 2019.
The standard of proof applicable to these proceedings is the civil standard of the balance of probabilities, per section 140(1) of the Evidence Act. However, without limiting the matters to be taken into account, subsection 140(2) requires the Court to take into account the nature of the legal issues involved, the subject matter of the proceedings, and the gravity of the matters alleged. This is the clear statutory successor to the principles enunciated by the High Court of Australia when considering the civil standard of proof in proving adultery in divorce proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336.
The behaviour alleged against the father is extremely grave, and includes not only acts of family violence against the mother and children, but of threats and intimidation against professionals involved in the proceedings. I have had this standard in mind when considering the material and allegations, and have been persuaded to a degree of comfortable satisfaction in making my findings.
The mother’s evidence was extensive. Her trial affidavit, filed 30 October 2019, ran to 474 paragraphs across 77 pages with 606 pages of annexures. Given the history of the matter this was unfortunately necessary.
However, as noted above, concessions made by the father during cross-examination and confirmed in final submissions as to much of the factual nature of the conduct complained of, though not to intent or as to the proper interpretation of the conduct or communications, substantially narrowed the factual issues.
Given his concessions, considered below, there is no doubt much of his conduct falls within the definition of “family violence” in section 4AB of the Act. That definition includes “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful”, and specifically encompasses matters such as; stalking, repeated derogatory taunts, intentionally damaging property, and preventing the making or keeping of connections with family.
Given his concessions as to many of the acts of family violence raised during relationship, and of his post-separation communications, I do not consider it necessary to seek to detail here nor make findings about each alleged incident of family violence. I consider it sufficient to detail a selection of the alleged and admitted conduct and communications to paint the picture which explains my findings and Orders.
Further, the voluminous annexures to the mother’s affidavit and the exhibits evidencing his communications by email, Facebook and in his change.org petition to overturn the Orders of the Court, which he acknowledged he wrote, sent and posted, speak for themselves.
Pre-separation on 29 March 2016
The mother’s evidence was that in the period prior to separation the father consistently perpetrated acts of family violence against both the mother and the children, including through physical violence, psychological abuse and through attempts to isolate her from her family, in particular her parents.
In respect of the pre-separation period, the father conceded during cross-examination and in his final written submissions many of the specific acts of physical aggression alleged.
These admissions included the mothers allegations set out in paragraph 306 and, to some extent, 309 of her trial affidavit.
At paragraph 306 the mother said that prior to the birth of the children the father would break her personal belongings to vent his anger against her during arguments, usually sentimental items that had been given to her by members of her family. She gave evidence of one particular occasion during which the father smashed:
…the glass portion of a buffet that had been given to me as a gift by my parents. Inside the buffet there was stored a number of items of crockery, some of which were also smashed by the husband on this occasion.
At paragraph 308 and 309 the mother said that, when in the third trimester of pregnancy with X when “my parents called us to ask for permission to visit me”, noting that the father required the mother’s parents to seek permission before attending the former matrimonial home, he became angry and:
…grabbed a shirt that had been given to him as a present by my mother and ripped it apart with his bare hands. He then proceeded to the nursery that I had set up for the baby and grabbed a mobile that I had hung from a bar attached to the cot, he destroyed this again with his bare hands and threw it out into the middle of the street. The husband then turned his attention to other toys that were in the nursery and began to damage and destroy these. I attempted to stop him and in response, the husband grabbed me around my arms close to the shoulders and shook me violently. The strength of his grip was such that he left bruise marks on my arms where his hands had gripped me
The father’s admissions in cross examination, subject to certain caveats, in respect of the events in paragraph 309 was, summarised in his written submissions as follows:
As to the episode at [309], which occurred in 2007, the Father says that the shirt and mobile incidents were separate to the holding incident. As to the holding incident, the Father says it was an action consequent upon the wife using her nails in his chest which required him to grab her arms and distant himself from her. This version is consistent with the hospital records of reported bruising.
While admitting many of the specific allegations of family violence under cross examination, the father notably and consistently did not take responsibility for his conduct. His final written submissions accurately summarised the tenor of his oral evidence concerning his acts of family violence, which was that:
He admits the acts of destruction and damage at [306] and [309] of the Mother's 25.10.2019 affidavit. But says that, what he saw as the constant interference but(sic) the Mother's parents, was the primary reason for the physical demonstration of the frustration he was feeling. That stressor, very real to the Father, is no longer part of his life.
Whilst this submission was made to advance the proposition that in the absence of this particular stressor the father is unlikely to be a risk to the children of committing further acts of family violence, the critical thing that I draw from the father’s evidence and submissions in this regard is his complete failure to take any responsibility for his own actions, and his belief that he was entitled to and justified in acting out in a physically destructive and verbally aggressive manner in response to actions by other people which displeased him. Even actions as mundane as his mother’s parents asking permission to come over in Order to see their heavily pregnant daughter.
The mother detailed an incident, at paragraph 325 of her affidavit, in which the father:
…in a fit of rage picked up a hard plastic toy train and hurled it at my head. I was able to duck, however, the train struck the corner of the oven, smashing the tempered glass of the oven door. … This resulted in the door of the oven needing to be replaced.
The father agreed in cross examination that he had thrown the toy and broken the oven door, stating that he did not agree he threw it at the mother, nor that he intended to break the oven but that “I just threw it”. When asked whether he was angry he said that he was “slightly upset” and that he would “have been frustrated on the day”.
The mother also made allegations that the father used excessive physical force to discipline the children.
The children’s disclosures to the Family Therapist about conduct which she characterised as “physically punitive especially towards” Y, and her opinion that their consistently expressed fear of spending time alone with the father were a consequence of their individual experiences with the father, and not a result either of alienating conduct on the part of the mother or of one child parroting the other, are considered in more detail below.
The father in cross examination admitted to hitting the children, he said with an open palm and usually on their legs. He said that he did not recall the incident the mother raised, at paragraph 316 of her affidavit, of seeing him “push or kick” Y causing Y to fall head first into a door splitting open his forehead. The father denied that he would have done that. He also admitted using a belt on the children, and agreed that he could recall one occasion when he was using the belt and the mother sought to intervene and he then struck Y again saying “this one is from your mother”, but denied it occurred on multiple occasions as alleged by the mother. The father said he regretted saying “This one is from your mother…and constantly reacting to [the mothers] criticisms”.
It is important to note that even whilst giving evidence that he regretted his actions, he still sought to shift blame to the mother, suggesting that she was at least partly to blame for “criticising” him when she sought to intervene because he was excessively physically disciplining their child.
In his written submissions he said:
The Father concedes the acts of punishment of the children and, although maintains that the need for discipline was justified now regrets the method employment(sic).
Separation until April 2017
The mother’s evidence was that the father threatened her at separation. He denied that. In his affidavit the father had recorded that the conversation at separation included him saying “Look, if you want to have a healthy life, it’s better you just go”. The father denied that was a threat. He said he was merely suggesting that prolonging the relationship would be unhealthy.
After the separation of the parties, the children initially remained living in the former matrimonial home with the father spending limited time with the mother, which increased to the children in an erratic care arrangement which was to accommodate the schedules of the parties. Time eventually progressed to a more structured equal time arrangement between the parties at the end of 2016 which continued until April 2017.
In respect of this period the father’s evidence was that the shared arrangement was evidence that up to that point there was no issue raised of him being a risk or unacceptable risk to the children. He relied upon that as evidence that this was an issue subsequently fabricated by the mother. The mother’s evidence and case was that she agreed to a form of shared care arrangement during this period because she felt she had little choice.
Period from April 2017 to December 2018 including family therapy
In respect of the third period, from about April 2017, the mother said that her fears for the children’s safety caused her to seek interim Orders, which were granted by a Judge of this Court on 25 July 2017.
The Court’s Orders included, amongst others, Orders for the children to live with the mother and spend only supervised time with the father on a fortnightly basis. There was also an Order for telephone communications between the children and the father each Sunday at 5PM with the father to initiate the call. The father was otherwise restrained from approaching the children without the mother’s written consent.
Despite being granted supervised time with the children the father only took up that option for a limited period of time. The father raised issues of cost of supervision as a significant factor in his failing to spend time with the children to the extent allowed.
The parties then engaged in reportable family therapy with the Family Therapist between September 2017 and 16 December 2018. The Family Report is considered further below.
The mother says, and the documentary evidence overwhelmingly establishes, that the father commenced an unrelenting campaign of communications directed to the mother and a range of other people associated with these proceedings and also by making posts on social media, in particular on Facebook, in violation of section 121 of the Act.
The material comprising the father’s communications is too voluminous to set out in full.
To give a flavour for the nature of the father’s communications with the mother, the father agreed in cross examination that he had sent messages to the mother with reference to her being, among other things, a “stupid brain dead fuck” and a “slut”.
In an interesting counter-point to that last epithet, the father agreed to sending a message referencing the affair which he had during the marriage stating:
…while I was pumping [Ms X] I was pumping you, but she was a thousand times better.
When asked whether it was his intention to upset the mother with one of his communications he said: “I was an angry person. How would you like to spend your Christmas without your children” and when pressed “I was an angry person on the day”.
The father’s consistent position throughout his oral evidence was that it was the mother’s conduct with regards to the children in this period which had caused his anger, and that his anger on any given day was a justification for his conduct in sending such messages. He asserted his conduct in this regard was not relevant to his parenting and that sending such text messages did not make him a bad father. Indeed, he went further and said in evidence that it was a “shame” that counsel for the mother had to bring up such matters and that it was inappropriate that a mistake from a year ago be brought up to keep him separated from his children.
That was consistent with his evidence regarding the acts of family violence during cohabitation.
This reference to communications being a year old also failed to address the fact that his angry communications were continuing, and indeed increasing in intensity, right up to the hearing, despite an Order of this Court of 20 August 2019 prohibiting him from communicating with a range of people including not only the mother but the ICL and their staff, the mother’s solicitor and their staff, and the Family Therapist.
The father was also communicating with other people during this period. The Family Therapist said in the Family Report, which is considered further below:
Since being engaged with family therapy he has sent repeated messages to solicitors, I.C.L. and myself about the despair he feels in the proceedings. His despair seems quite uncontainable and overwhelming.
The tenor of those communications will be explored in more detail below, but it is worth noting that the father’s emails were sent or copied, variously, to the mother, the mother’s solicitor, the personal assistant of the solicitor for the mother, the former ICL, the current ICL, the personal assistant of the ICL, the Family Therapist, the children’s schools, the children’s church, the office of the Catholic Education Office, Catholic Social Services Australia, various members of the NSW State and Commonwealth Parliaments, the “Abuse Report” email address of the Sydney Anglican Archdiocese, the family law contact email of the Australian Federal Police, the police officer handling the NSW State AVO proceedings, and the associate to the Federal Circuit Court Judge who case managed this matter.
The Family Report
The family engaged in reportable family therapy with the Family Therapist between 21 September 2017 and 16 December 2018.
The Family Therapist commenced with individual interviews with each parent, and then spent time firstly with the mother and the children, before spending time with the father and the children, and seeing the parties in various combinations.
The Family Therapist recorded the children’s views in the Family Report. She noted that:
87. The children were seen with their father on ten occasions. Usually the sessions lasted from one to two hours. The sessions occurred either at Suburb EE, the Suburb DD Shopping Centre or the therapists consulting rooms.
…
93. The children expressed a number of views in the course of the family therapy process. The children are quite different in their temperaments and demeanour and they reported a somewhat different history of their relationships with each of their parents. They are of an age where although their views are not exclusively what should determine the outcome, they need nonetheless to be given considerable weight.
The Family Therapist reported X’s views as follows:
79. X stated that he wants to see his father as long as someone is there with them. He said that he would feel a bit scared if no one present to look after them as Y has been hurt by their father in the past and he does not want that to happen again. He added that he also feels unhappy when he does not see his mother for a while. X stated that he was unhappy and disappointed when his father did not tum up at the Contact Centre as he was feeling excited about seeing him. X stated that if he could wave a magic wand, he would wish that none of this would have happened to his family.
…
94 X expressed a view that he enjoys a relationship with both parents and would like to spend time with his father.
…
95. X indicated that he has enjoyed the visits with his father and has felt a sense of disappointment when his father has not arrived as expected. He disclosed that he would prefer someone to be present when he spends time with Mr Papke. There seems to be some fear on X’s part that he and particularly his brother, may not be safe with his father unless there is supervision.
She reported Y’s views as follows:
83. Y spoke about the members of his immediate family. He said that his father is “the best Dad I ever had” and “special to me”. He commented that his father is sometimes kind but sometimes a bit scary. He mentioned a number of incidents when his father has physically punished him which made him feel scared that it might happen again. He indicated that he has received more discipline from their father than X. He disclosed that because he sometimes gets angry, he is afraid that he will become like the part of his father that makes him afraid.
…
He stated that he feels scared when his father does scary stuff which includes hitting him.
…
85. Y stated that he wants to see his father more often as long as someone is there with them. He said that he is worried that his father might take them again as he has taken them away once. Y said that he prays for his father and worries about what he is doing, where he is living and whether he is all right. He added that he was very worried when his father had his accident.
86. Y stated that he was shocked and disappointed when his father did not turn up at the Contact Centre. Y stated that if he could wave a magic wand he would wish that his family could be together, that they would have a good life, and that he could learn about good things such as friendship, people being nice to each other and for there to be more love in the world.
…
96. Like X, Y expressed a view that he enjoys a relationship with both parents and would like to spend more time with his father.
97. Y indicated that he has enjoyed the visits with his father and has felt let down when the visits have not proceeded. On the one occasion when Mr Papke did not attend a family therapy visit, Y expressed a palpable level of disappointment. Y disclosed that he would prefer someone to be present when he spends time with Mr Papke. There seems to be some fear that his father may take them in the way he recalls has happened in the past.
The Family Therapist stated that:
98. The expressed fears of the children that they would like supervision may have several sources. It may be indicative of a realistic fear they have of their father based on some of his past discipline of them, even though they also report loving him and wanting to see him. It may also signify some identification with their mother’s fears. It is not uncommon for children to identify with the fears of a parent and then internalize them as their own. Ms Papke continues to have reservations about Mr Papke’s behaviour and the safety of the children if they are with him alone. Finally, it might rekindle for the children their fear that their mother will be stripped from their lives and that they may re-experience the abandonment they felt at separation.
The Family Therapist also said of the nature of the relationship:
99. Children such as X and Y are likely to do best in their psychosocial development if they are able to enjoy an unfettered relationship with both parents providing they are safe from any risk of harm. It would seem that, throughout the marriage and prior to the separation, Ms Papke was the primary care giver for the children and that they formed a close relationship with her and perceived her to be the main source of their emotional nurturance. They continue to see her as the attuned parent who is there for them and to whom they can turn in times of emotional distress. From the observations that were made in the course of therapy, Ms Papke fulfils(sic) this role to a highly satisfactory level.
100. Although Mr Papke says he was a devoted and involved father in the children’s lives, the father/son relationships have seemingly been more formal. It seems that Mr Papke has been relegated to the role of disciplinarian and he was perhaps a less reliable presence in his children’s lives especially if his needs competed with those of the children. It is important for Mr Papke to appreciate the importance of consistency and reliability for the children and to the massive disappointment the children feel when he does not deliver on his promises and foreground their needs.
101. These patterns of the relationships that developed between the children and their parents during the marriage seem to have continued after the separation and, if anything, have intensified. … There seems to have been a high level of emotional distress from both parties with the children feeling they needed to provide their parents, especially their father, with some emotional sustenance.
…
103. The observations and disclosures of the children suggest that they feel some ambivalence about their relationships with their parents, especially their father. X disclosed happy memories of his parents living together but also some unhappy ones of inter-parental conflict and a number of incidents where his father was physically punitive especially towards his brother. While X indicated the significant relationships in his life are to his parents and sibling, his relationship with his mother seems to be the most significant. X was observed to be empathic and respectful in his relationships with his parents.
104. Y presented as a sensitive child whose stronger attachment is to his mother although there are also significant attachments to his father and brother. It is not uncommon for children with a disposition such as Y to be vulnerable to becoming implicated in the adult dispute. There was strong evidence of Y’s ambivalence in the way he found separations from his mother difficult but then immediately attempted to please his father. He demonstrated a need to be accepted by his father and behaving in a way while in the presence of his father that did not raise his father’s ire leaving him vulnerable and unsafe. He disclosed quite an intense and sustained level of concern for his father’s well-being. He was highly empathic to his father’s plight and the uncertainty of his father’s health, living arrangements and work situation. Y needs to be relieved of his preoccupation with his father’s well-being. Although some of Mr Papke’s responses have been appropriate in this regard, at other times, he has given the children reason to have an inappropriate level of concern for him.
The Family Therapist also said:
126. The parties have been unable to shield the children from their conflict and have unfortunately allowed their dysregulated behavior to spill over in the presence of the children. It is important for the parties to appreciate that children who are exposed to or involved in family conflict are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety and temperament problems are commonly seen in such children. They also sometimes manifest disorganization of planning and organizing functions, hypervigilance, poor inhibition of inappropriate responses and attention to distractions resulting in symptoms not unlike A.D.H.D. While X seem to be more resilient, Y is a highly sensitive child has been showing some symptoms of anxiety. It is essential that both children be relieved from observing further incidents of conflict between their parents. Furthermore, behavioural dysregulation on the part of parents provides a poor role model to the children of how to manage difference and resolve conflict.
At the conclusion of the Family Report the Family Therapist gave the following recommendations:
141. It is recommended that the parties work on a more collaborative relationship so that they can share parental responsibility. If this does not occur, the Court may need to consider granting sole parental responsibility to Ms Papke.
142. It is recommended that the children continue to live with Ms Papke.
143. It is recommended that the children commence spending unsupervised time with their father in a public setting such as a shopping centre. It is recommended that initially this occur for short periods of one to two hours and that the progress of those visits be monitored in family therapy and by the Court.
144. It is recommended that any increase in time including overnight occur cautiously and informed by the progress of the recommendation in paragraph 143. If the Court so considers any progression to overnight time might occur in the home of extended paternal family.
145. It is recommended that there be no denigration of significant others or any discussions pertaining to the adult dispute with the children.
146. It is recommended that Mr Papke refrain from sending messages to Ms Papke unless they are specifically related to the children.
147. It is recommended that Mr Papke refrain from sending messages of a hostile nature pertaining to alienation to the legal representative for the mother, the I.C.L. and the writer.
148. It is recommended that the parties continue to attend family therapy.
149. It is recommended that Mr Papke continue to consult with his psychiatrist and that he comply with treatment recommended by his psychiatrist.
December 2018 until the final hearing in December 2019
The last family therapy session was on 16 December 2018. The Family Report dated and also released on 17 December 2018 and recommended the commencement of unsupervised time, but on terms the father did not accept.
The father’s reaction to this report and these recommendations was on one view extraordinary, but at the same time entirely consistent with his prior conduct.
As a consequence the father has not seen or spent any time with the children since 16 December 2018.
While the father could have telephoned the children on a regular basis, he did not. He said this was because the mother was listening to and controlling the telephone calls. He agreed that he did not advise the children that he would not be calling.
There was one telephone call between the children and the father in February 2019. Otherwise the father has had no direct communications with the children since that date. The father had, however, sent about 600 letters and gifts to the children via the mother in 2018 up until 20 August 2019.
Rather than being willing to accept that the family therapy was progressing, the children’s expressed fears of being alone with him were being addressed and that the Family Therapist was indeed recommending the unsupervised time he believed he was entitled to, although not as much as he sought and still subject to some constraints, the evidence of his communication shows that he was outraged.
Rather than reducing his hostile and voluminous communications as recommended by the Family Therapist, this communication continued with increasing hostility.
As an example of the milder communications the father was sending is an email sent by the father on 18 July 2019 which said:
Erasing a loving parent by false allegations, is deliberate exploitation of children’s rights to be raised by both the mother and father the sole purpose of making money. Put simply, you are taking people’s money by breaking up family relationships that matter most to children. When will you stop this continuous evil?
The father justified this kind of communication as necessary to inform people associated with the case of the consequences of the children not spending time with him.
However, not all of his communications were so benign. On 20 May 2019 the father sent an email to the solicitor for the mother, the ICL and the Family Therapist (Exhibit U). It contained two pictures of a young woman who had recently been brutally murdered, with the following text:
The beautiful young lady below is Ms FF. She was engaged to be married to her fiancé. She was brutally murdered on Easter Sunday 2015 in Town GG, NSW. She was just 26 years of age.
No explanation was proffered for this communication of the kinds offered by the father for some of the other communications, for example that he was merely providing “information” relevant to parental alienation for the negative impacts on children of being separated from a parent.
The sole message communicated was that people in general, and women in particular, can be brutally murdered.
I am comfortably satisfied to the relevant standard that this email was sent solely to threaten and intimidate the Family Therapist, the ICL and the solicitor for the mother in respect of their involvement in these proceedings.
The Family Therapist was asked in cross examination about the volume of communications she received, having identified the volume as well as the content as being a matter of concern to her. She gave evidence that she had estimated that just between 3 March and 29 July 2019 she had received 21 text messages and 95 emails. She noted that some emails were excerpts of literature about parental alienation, but that others were quite pointedly directed at her and expressed the father’s feelings about her competence.
She gave evidence that “many of the messages that have been sent to me have been very distressing …” and that one message “began to make me feel really concerned was quite alarming because it was threatening” and that she determined that she would not be able to continue as the Family Therapist with this family.
The Family Therapist identified the particular communication which she considered threatening as an email dated 8 June 2019 (Exhibit C). While the content of the email was addressed only to her, consistent with the father’s general approach the email was copied to a range of people, including the solicitor for the mother who is named in the body of the email.
The email read [emphasis added]:
You steal $3300 off me to write a biased 'Family Report' after you found no seriously threatening behaviour towards my children, and then you have the nerve to say I am unsafe to be around because I no longer require your services. You are a complete disgrace to the industry and the welfare of everyday Australians as a professional [Family Therapist] and I don't recommend you in the least. You also bribed me in our final session together at [the] HH on 16/12/2018. The following is my advice to you; "It would be better for him (you and Mr L) to have a millstone hung around his neck and to be thrown into the sea than to cause one of these little ones to stumble."
She identified the last sentence, emphasised above, as the particular communication which she found to be threatening.
It was put to the Family Therapist that this was clearly a Bible quote. She said that she did not know if it was a Bible quote, noting that other Bible quotes sent to her by the father had identified the particular Bible verse, and that even if it was the case that the father was quoting the Bible “in the light of all of the other communication that was happening, it was not a good choice of bible verse in my opinion”.
The father’s case was that he was merely quoting the Bible and not seeking to harass, intimidate or threaten the Family Therapist for having failed to provide an opinion in accordance with his wishes. He submitted in regards to this Bible quote that “although alluding to an act of violence it is principally a warning to those who do damage to children”.
I accept the father’s submission, pursuant to section 144(1)(b) of the Evidence Act, that this is clearly the Bible verse found at Mark 9:42 and also Matthew 18:6. The latter verse in the King James version states:
But whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.
The fact that it is a Bible quote does not make it any less threatening, either in the context of the single email, or in the context of the totality of the father’s increasingly hostile communication to the Family Therapist.
I am comfortably satisfied, to the relevant standard, that this email was intended as a threat and as a form of intimidation against an expert witness who had provided what the father considered to be an unfavourable report.
On 20 August 2019 the Court, having had the voluminous emails including those cited above brought to its attention, made Orders restraining the father by injunction from continuing to publish information about the proceedings on Facebook and further communicating electronically with the Family Therapist, the solicitor for the mother and the Independent Children's Lawyer, amongst others.
As the father did not elect to attend on that date, and as he was unrepresented, to assist him so he did not unknowingly breach these injunctions the Court emailed the father a copy of the Orders. As the Court does not communicate ex parte that email was copied to all parties in these proceedings.
On 24 August 2019, the father posted his view of the Orders on Facebook in specific and intentional breach of the Orders which he had been sent. He said:
My response to this week not being allowed to go within 200 metres of my children, 200 metres of their church, or 200 metres of their school for simply sending non-threatening emails to the independent children’s lawyer Mr Duncan Holmes; I will never cower before any man of immorality nor bow to any threat of injustice. It is my heritage to stand tall, humble, but unafraid; to think and act for myself and my neighbour, enjoy the benefit of God’s creations, and to face the world daily with enthusiasm and gratitude. May God give me the courage to face tomorrow. I love you boys.
As part of this post was a picture of the father and the two children the subject of these proceedings, in contravention not only of the specific Court Order but of section 121 of the Act.
The father also posted a petition on Change.org outlining his complaints.
Unfortunately, the Children became aware of the father’s online activity.
On Monday, 26 August 2019, by email in reply to the Courts email attaching the Orders made on 20 August 2019, the father emailed the personal assistant of the solicitor for the mother and the personal assistant of the ICL at their email addresses. He addressed them by name saying “… you don't have to work for such evil men. You should be all ashamed of yourselves and may God have mercy on your actions”.
On 8 September 2019 the father sent an email to the solicitor for the mother and to the ICL. The email contained a picture and underneath it some text directed to them. The picture showed the side view of a man from the shoulders up. He was shown in black silhouette against a red background. His head was tilted back. He was holding a handgun. The muzzle of the gun was against the bottom of his jaw. His finger was on the trigger. The image clearly represented an imminent suicide by gunshot to the head.
The picture contained the following text:
For some men the battle is too much, living without their children too painful and fighting a system set up to destroy them is impossible.
[Image]
The Fathers’ Rights Movement
The text of the email message from the father read:
25+ men take their own lives in Australia each week because of family lawyers, ICLs, family court judges, and court appointed family consultants. Maybe you could take their place (Mr L and Mr Holmes)?
It was put to the father that this was a threat. The father denied that.
I am comfortably satisfied, to the relevant standard, that this email was intended as a threat and as a form of intimidation against the solicitor for the mother and against the ICL arising out of their attempts to adequately discharge their professional duties to their clients and to this Court.
As an example of the extent to which the father sought to involve people other than the mother or people directly involved in litigation, the father sent an email dated 12 August 2019 (Exhibit B), inter alia, to the children school with a picture containing the words:
Make NO mistake, if a child is rejecting a parent they ARE being abused! Not by the parent they are rejecting, but by the parent who is covertly coercing the rejection. Kids don’t reject a parent, kids love both parents.
The father said in cross examination that it was appropriate to send this email to the children school so they would understand the situation of his children, and because the school had the right to know of his attempts to spend time with his children. He said that this kind of email was not harmful “in the grand scheme of things”.
I do not accept that explanation. The natural meaning of the words makes it clear that the father was conveying to the school his view that the children were being “abused” by the mother who was covertly coercing them into rejecting him. This was no more than an attempt to publicly smear the mother as part of a relentless and public campaign against her.
As noted above, I have only considered it necessary to set out a small selection of the material before me in order to adequately explain the father’s conduct.
Before considering the oral evidence of the Family Therapist I will turn to consider the evidence of the father’s mental health.
The father’s mental health – documentary evidence
The father’s mental health, as it relates to his behaviours over time and the likelihood of that behaviour continuing into the future, was an issue in the proceedings.
Unfortunately there was no qualified psychiatric evidence and the available evidence from the father’s former treating psychologist and psychiatrist was limited to some documentary material obtained under subpoena.
The Family Therapist did provide some commentary upon the father’s mental health but, consistent with her role as a Family Therapist did not undertake a full psychological evaluation of the father.
Did the father stalk another woman?
An issue arose during the course of the proceedings as to whether or not in 2014, after dropping his children at school, the father had seen an unidentified woman dropping a child off at a nearby pre-school, followed her to her home address, and had driven past her house a number of times whilst contemplating going inside the house to perform sexual acts upon her.
The mother’s version of this event, as described to and then by the Family Therapist at paragraph 33 of her report was that:
Ms Papke reported that in 2014 there was a police incident when Mr Papke and called a counselling services and admitted to having sexual urges after seeing a woman dropping children at the school his sons attend. He followed the woman to her home. Ms Papke said that he disclosed some suicidal ideation at the time. Ms Papke stated that the children were, at the time, in Mr Papke’s care before and after school while she was at work and that worried her.
The father was cross-examined on this topic and denied the substance of the event, i.e. that he had stalked a woman while considering whether to follow her into her home to sexually assault her.
Before considering the father’s evidence it is appropriate to set out the police incident narrative (Exhibit K) in full.
DATE: 17/9/2014. PATIENT NAME: MR PAPKE
About 11.45am on Wednesday the 17th of September 2014, the patient PAPKE contacted the service on ............ ....... PAPKE stated to the counsellor that he was currently receiving treatment for depression. This morning (17/9/2014) PAPKE dropped his two children off at their school. The school is JJ School, located across the road from Suburb DD Police Station. After dropping his children at school, PAPKE has seen a mother dropping her child off at a nearby pre-school. PAPKE thought the female was attractive, and has some thoughts of doing certain sexual things to her. PAPKE decided to follow the female to her home address. He drove past her house a number of times, contemplating going inside the house to perform these sexual acts on her. However, PAPKE decided against this and drove home. The female has not been identified and it appears that she was not aware that she had been followed. PAPKE stated to the counsellor that this is the first time he had acted in this way, despite him having sexual urges in the past. In his own admission this is the first time he came close to approaching a female. PAPKE outlined that he would probably do the same thing the following day. PAPKE admitted to have a bad pornography addiction (adult porn). A representative from Men's Line contacted Suburb KK Police where an initial report was made. Intel ......... was created. Detectives were notified. A review of the incident was done and it was decided that PAPKE had not committed any offences as yet, but the likely hood of a serious offence being committed was high. A decision was made to schedule him under Section 15 of the Mental Health Act. "A person (whether or not the person is suffering from mental illness) is a mentally disordered person if the person's behaviour for the time being so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment or control of the person is necessary: a) for the person's own protection from serious physical harm, or b) for the protection of others from serious physical harm" About 4.40pm Detectives .......... ...................... ............ ..... ... . . ........ . .. .. .. .. . and spoke with PAPKE. He made certain admissions to the content of the call to the counselling service, but stated that he would never carry out any of his thoughts or desires. After some discussion, PAPKE agreed to accompany police to LL Hospital for a mental health assessment. Police arrived at LL Hospital and a schedule was completed. Despite PAPKE voluntarily coming with police, given the circumstances a schedule was completed. Police left PAPKE in the care of hospital staff after being triaged. The female that PAPKE followed has not been identified. The school will not be contacted in relation to this as it is believed that this will cause undue distress. No further action ....
…
Shortly before 9pm on Wednesday the 17th September 2014, police received a telephone call from ............. ..... the registrar …. The doctor advised police that the issues that PAPKE has are not mental health issues, they are in fact police issues. When advised that PAPKE has not committed any offences, and the reason for him being scheduled was to potentially protect another member of the community, .... ..... still stated it was a police matter and only stated that PAPKE suffered from depression .......... stated that PAPKE had an appointment for a group session or similar in the morning of 18th September 2014. PAPKE was released from the hospital with any further treatment, despite him clearly saying to police and hospital staff that he needed and wanted help .......... also justified her release of PAPKE because he denied saying the things outlined in the previous narratives . ..... . ... took the word of PAPKE that he didn't say these things, despite the fact that the conversation was recorded, and over the word of Detective .... ... .. that PAPKE made certain admissions to saying those things. Attitude of ......... was very poor. Essentially she showed no care for any potential victim if PAPKE was to carry out his threats, and released despite the pleas from police.
The hospital records tendered (Exhibit L) summarised the information provided by the father to the hospital as follows:
He provided the following information:
Sometime this morning, the 17th September 2014, he dropped his children off at school. Whilst at the school (location unknown) Mr Papke saw a female not known to him, at a nearby pre-school. Mr Papke found this female to be very attractive. Her identity is not known.
After dropping his children off, he followed the female to her residential address (not known) and had serious thoughts of going inside and doing sexual things to her. Mr Papke stopped himself and left the location. Mr Papke stated to the counsellor that he has had these impulses before but has never acted upon them. This is the closest he has ever come to acting on these impulses. Mr Papke also stated that he would do the same thing tomorrow, and he may even act upon them.
Mr Papke is currently suffering from depression and is seeking treatment from a psychologist. It is unknown what the cause of this is or what treatment he is under.
Mr Papke admitted to having a bad pornography addiction.
The father agreed that the New South Wales Police attend at his home and had taken him to LL Hospital as a consequence of a report he had made to a hotline. He agreed that he had told the hotline counselling service that he had taken the children to school and that he had seen a woman he did not know. He agreed to having and advising them of his pornography addiction, noting that there is no suggestion that this involves child pornography.
However, when it was put to him that he had followed that woman to her residential address he said “I have never followed any female to their residential address”. He also denied that he had thoughts of entering the females home and of doing sexual things to her, thoughts of doing the same thing the following day or that he had said these things. He repeatedly answered questions on this topic with variations of the answer:
…that is totally incorrect and false
While there is no documentary or other evidence from the hotline, or the person on the hotline who spoke with the father, the hospital record makes it quite clear that the father was seen and that “He provided the following information”, which confirmed the essential content of the police narrative. Although neither the sound recording referred to in the police narrative nor any transcript of it was tendered, the police narrative stated that the father’s statements to detectives had been recorded.
Whilst one must always be cautious in assessing the weight of such documentary evidence, the correspondence between the hospital notes and the police records and the consistency between those documents together with the events that the father admitted to in terms of being taken to the hospital and assessed, comfortably satisfy me that the events in question occurred as recorded in the contemporaneous LL Hospital and NSW Police records. I further find that the father’s repeated and strenuous denials were untrue.
This evidence is concerning and, although the father did not act on his impulses, adds to the concerns about his capacity to regulate his emotions and his impulse control.
Ms MM – former treating psychologist
The father attached to his affidavit a one page report prepared by a Ms MM, psychologist, dated 31 May 2017. It recorded a history of nine sessions between 27 September 2016 and 18 May 2017.
She recorded:
…he had insight into his relationship with his kids and could identify that at times, he was being “self-absorbed and selfish”
She said that the father:
…has demonstrated that he can control his emotional behaviours, he has implemented therapeutic techniques and thinks outside of himself therefore therapy sessions will cease.
In oral evidence the father confirmed he had not seen Ms MM since May 2017. No affidavit was filed by Ms MM and she was not made available for cross examination.
Dr NN – former treating psychiatrist
The father gave evidence that he was referred to Dr NN by his general practitioner, Dr OO.
The father did not serve any affidavit or report from Dr NN, although he said he had asked for one.
Dr NN’s notes were subpoenaed. Two short reports dated 30 July 2018 and 12 June 2019, to Dr OO were tendered together with Dr NN’s handwritten clinical notes (Exhibit M).
The report dated 30 July 2018 set out a short psychosocial history and noted, inter alia, the father was:
…becoming very stressed and finding it difficult to cope with any conflict
…
feeling extremely distressed that he is unable to see his children
In conclusion that:
On mental state examination, Mr Papke was a tall man with a reactive temperament. He was very distressed about the separation from his children. He had anxiety about what could happen in the future with regard to access. He had no psychotic symptoms. He had no cognitive deficits. He had some insight into his difficulties.
As you can see, Mr Papke represents a long-term complex management problem. I have not intervened in a psychopharmacological way as yet. I want to continue to try and understand more of the issues and gain his trust in order to build a strong relationship.
The report dated 12 June 2019 was only three paragraphs long and stated (emphasis added):
I saw this 40 year old man yesterday. He is very distressed as he has not had any access to his children for six months. Mr Papke has also had an AVO placed on him by the police, for the next two years with regards to his ex-wife. He is also on a one-year good behaviour bond.
Mr Papke is anticipating the access dispute regarding his children to be heard in 2020. He is trying to do Bible study and a diploma. He is estranged from his parents but has the support of his sister Ms PP.
This is an extremely sad situation and I’m hoping that he will continue to see me, in order for me to help him understand how he got into this situation.
In cross-examination the father stated that he last saw Dr NN on 29 November 2019, and that he had spoken to Dr NN during the hearing. He confirmed that Dr NN had prescribed him Pristiq for depression.
The father’s evidence was that treatment with Dr NN ceased as of 29 November 2019 because the final hearing was approaching. He said he only saw Dr NN for seven minutes and that Dr NN had said:
…you’re a brilliant man…I hope you get joint guardianship…I wish you all the best
I give no weight to this hearsay statement by the father from his former treating psychiatrist.
The Family Report
The Family Therapist summarised the father’s presentation as:
45. Mr Papke (aged 43 years) presented as somewhat broken spirited and deeply distressed about the way he has been treated by the family law system. He believes the system, in particular, Ms Papke’s lawyer has conspired to keep him away from his children and has little insight into how his behaviour may have contributed to the situation in which he finds himself. Since being engaged with family therapy he has sent repeated messages to solicitors, I.C.L. and myself about the despair he feels in the proceedings. His despair seems quite uncontainable and overwhelming.
The Family Therapist said of the father’s mental health:
35. Mr Papke acknowledged that he suffered from depression over the years. He attributed the cause of his depression to the stress of the relationship with Ms Papke who he claimed was controlling and manipulative and prioritized her parents over him. He said that he has, in the recent past, received 10 sessions of therapy with Ms MM in Suburb DD from September 2016 to May 2017 and she reported that she saw a massive improvement in his mood. A letter is attached to his affidavit filed 19th July 2017. He said that he is currently under the watch of his psychiatrist Dr NN in Suburb QQ and has been prescribed Pristique. He stated that he has reduced the dose of medication from 200mg to 100mg daily. He said that he has put on weight since he has been on the medication. He added that recently he forgot to take his medication for two days and had no side effects which led him to make the decision to self-medicate and reduce his dosage. He said that he has not spoken with his doctor about this. Ms Papke in her affidavit sworn 3rd March 2017 paragraph 194 indicated that Mr Papke was non adherent with medication during the relationship as well. Mr Papke considers himself to have progressed so far since the separation and to have become much healthier mentally. Attempts were made to contact Dr NN at the telephone number provided by Mr Papke and also listed on line, however, there was no response and no answering service to leave a message.
…
131. There seems to be a long standing and pervasive diagnosis of depression for Mr Papke. Very little has been sighted in respect of Mr Papke’s mental health history except for the police report in 2014 when he was scheduled by the police after he made a disclosure on a men’s counselling line of strong sexual urges. While it seems that he may not have received the support that he sought at the time and that he was treated poorly by the revolving door that is often seen when police and medical issues intersect, to his credit, he had the insight to seek help.
132. Some of Mr Papke’s current disclosures however, suggest that, like many people who suffer from a mental health diagnosis, he has limited insight into his condition, he minimizes the impact of the condition on his life and he has been non adherent with treatment – medication and otherwise when he starts to experience an improvement.
…
133. … For Mr Papke, his personality constructs and the intensity or his sadness over his perception that Ms Papke and the system have conspired to deny him a relationship with his children have resulted in him feeling persecuted and entitled and has resulted in an intense reaction that he has expressed primary through social media. His social media posts suggest that at times he has a poor filter to the appropriateness of his communication and insight into the impact of his behaviour which has tones of obsessiveness. There have also been occasional posts where Mr Papke has referred to the consequences on parents who are denied a relationship although there have been no reports that Mr Papke has engaged in any self-harm.
134. On-going litigation is a significant stressor. Given the history of Mr Papke reaction since the litigation has commenced, it is likely that his frustration will continue and his social media postings will not stop until he has achieved the end he believes he deserves. This consumes a considerable amount of his emotional energy and resources and portrays him as a hostile litigant.
The Family Therapist also said:
115… Mr Papke feels considerable resentment for the way he has been excluded but any attempts to include himself have been fraught and non-conciliatory. He seems to have minimal appreciation of the fact that, if he wants to be involved in the children’s lives, the strategies he has thus far adopted are not conducive to that happening. Indeed a continuation of the behaviour Mr Papke has used could lead to A.V.O. proceedings which would not be in the interests of the parties of the children.
116. Hence, while Mr Papke believes that Ms Papke has been an alienating force in his life, he seems to have minimal recognition for the effort Ms Papke has put into facilitating the children’s relationships with him. Indeed Ms Papke has been observed to want to foster the children having contact with their father and when the visits have occurred she has provided appropriate gifts. She was also observed encouraging the children to see their father and being attuned when they separate from her and return to her after the visit. She also facilitated the children visiting their father when he was in hospital. The children do not show the signs of children who are alienated and it would go a long way towards improving the tenor of the parenting relationship if Mr Papke could appreciate this.
The Family Therapist’s oral evidence
In her oral evidence the family therapist stated that at the time she wrote the family report and made her recommendations, she was still hopeful that the parties’ level of distrust might decrease. She confirmed that the father’s communications with her and with various other people, considered above, caused her to change her recommendations from those in the report.
The Family Therapist was asked about the source of the children’s fear of spending time alone with the father. She gave evidence that the children repeatedly told her, in her one-on-one sessions, that they “felt safe” with her being present with the father. She said she had formed the opinion that Y, in particular, felt unsafe as a consequence of certain physical disciplining he had received when living with the father. That is consistent with the mother’s case, and with the father’s partial concessions, about the father’s use of excessive physical discipline.
In respect of X’s statements that he wants to spend time with the father as long as someone else was there with them, she stated that this was something X stated throughout the course of the therapy. The Family Therapist stated that it was a repeating theme that the father had acted in a fashion which was, using her language rather than the children’s, “punitive”.
On the question of whether or not X’s fears of the father arose from intentional or alienating conduct on the part of the mother, the Therapist stated that she believed that this was X’s view and not something he had learned from the mother. With regards to Y she also stated that she thought his fears were a consequence of his experiences.
She said she reached the conclusion the children’s fears were an expression of their experiences, rather than alienation for a number of reasons including, because there was “concordance between the reports of the two children”, noting that the boys were always seen separately and further that the children’s reports on this topic were consistent across many sessions. Additionally, she stated that “the children did not present as children who were alienated from their father. They wanted to see their father, and they were quite excited about seeing him, but they did want to know they were safe with him”. She also did not think this was a case of one child parroting the other.
She also said that the children confirmed their view that X was the favourite son, and that Y was perhaps more scared of the father than X was.
In respect of the incident referred to in the Family Report, at paragraph 86, where “Y stated that he was shocked and disappointed when his father did not turn up at the Contact Centre”, the family therapist stated in her oral evidence that father did not turn up to a scheduled family therapy session. The Family Therapist gave evidence that the father did not give her prior notice, that she had to call him on the day and that his answer as to why he had not shown up was “a bit ambiguous”.
The Family Therapist was taken to counselling notes from Y’s school from August 2019 and September 2019 (Exhibit B).
On 21 August 2019, it was reported that Y was seen by the school counsellor and “was in distress - “scared” that dad may come to school to take him.” It was noted on 28 August 2019 that:
Y disclosed wish of wanting to see dad but only in the presence of an adult. Y also expressed wish of mum and dad getting back together, the family being together, but is aware that mum does not want to. Y disclosed historic domestic violence…
ii) the circumstances in which the Order was made;
iii)any evidence admitted in proceedings for the Order;
iv) any findings made by the Court in, or in proceedings for, the Order; and
v) any other relevant matter
The Court must also consider the provisions of section 60CG which requires the Court, to the extent possible consistent with the child’s best interests, to ensure any Order is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence.
There is a current NSW AVO naming the mother as the protected person and the father as the defendant. The father is on a good behaviour bond as a result of a breach of that Order.
This Court has made similar Orders protecting the mother, the children and others which the father has intentionally breached.
The father’s contempt for Court Orders gives rise to real safety concerns for the mother, the children and other people associated with the proceedings.
l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child
Given the nature and extent of the father’s hostility the only circumstances in which I anticipate that further proceedings can be avoided is in the making of both no time and no communication Orders.
m) Any other fact or circumstance that the Court thinks is relevant
There are no other relevant factors not already considered above.
The Court to consider the risk of family violence
Pursuant to section 60CG of the Act, when considering what parenting Order to make the Court must, to the extent that it is possible to do so consistently with the child or children’s best interests being the paramount consideration, ensure that the Order is consistent with any family violence Orders, and does not expose a person to an unacceptable risk of family violence. The Court may include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
The Court has been urged by both the mother and the ICL to continue the extensive Orders pursuant to sections 68B and 114 made to protect the mother, the children, and other people who have been associated with these proceedings, or whom are associated with this family, to stop the father from harassing them both for their own protection and to stop the father from continuing his campaign of abuse and harassment against mother by seeking to draw into them into the dispute and turn against her the children’s school, church and other people and organisations with whom the mother and the children deal.
I am comfortably satisfied given the father’s behaviour that he is a risk to the mother and the children, and to third parties, by reason of his conduct to date and that people who participate in Court proceedings are entitled to be protected from a torrent of abuse, harassment, intimidation and threats by an angry litigant who believes that he is above the law.
For that reason I will make the existing injunctions permanent, and for the reasons set out further below will direct the Registrar of this Court to refer this decision to the appropriate prosecuting authorities.
Parenting - Summary
For the reasons set out above, I will make Orders that the mother have sole parental responsibility, that the children live with the mother, and that the children shall have no time and no communication with the father.
I will also make, or continue, Orders by way of injunction to restrain the father from approaching or seeking to communicate with the mother or the children, or their schools or church, or a variety of named relatives and associates of the mother, given his attempts to apply pressure to the mother through harassment of other people.
I will also make, or continue, injunctions restraining the father from communicating with or approaching the legal practitioners and their staff, and the Family Therapist in these proceedings, subject to an exception necessary to allow him to deal with any costs or other application before this Court by normal mail.
I have considered the proposal by the ICL that the father be kept informed of the children’s health and education and be entitled to receive school reports and information from treating medical practitioners, but his demonstrated inability to control his conduct means that such involvement by the father with these people is likely to be used by him as an avenue to continue his campaign of harassment against the mother. Whilst not allowing him access to this information is a significant decision, his behaviour is such that I consider it necessary to protect the mother and children from him.
Property
The Court is required to identify the parties’ existing legal and equitable property interests, whenever acquired, pursuant to the ordinary principles of the common law and equity.
As noted in the introduction, the affidavit and documentary evidence, the cross examination and the final submissions on financial matters were extremely limited, and occupied a very small part of the hearing. Consequently, I have had to deal with these issues as best I can, given the material available to me.
Joint balance sheet of the parties
The parties submitted the joint balance sheet. The major asset is the residue of the sale proceeds of the former matrimonial home, after an interim distribution of $50,000 to each party, currently held in a controlled monies account. I note that the parties agreed that item 6 should be $9,500, rather than the $17,500 listed on the original joint balance sheet.
The parties agreed that the sale proceeds was the only asset in respect of which the Court should make Orders adjusting the parties’ interests. It was agreed that the Court should deal with items 2 – 8 as post separation acquisitions by the parties, including by reason of the $50,000 interim distribution received by each party, which was not therefore sought to be “added back” by either party. Accordingly, all other assets and superannuation should remain where they are. There were no liabilities on the balance sheet. I was not able to identify the superannuation said to exist in the note to item 15. There was evidence of payment of legal expenses from both parties, but no “add back” was sought by either party in that regard.
Accordingly, I find that the parties assets, liabilities and superannuation, are as set out in the below joint balance sheet:
| Ownership | Description | Value | |||
| 1 | Joint | Sale proceeds held in controlled monies account | $491,342.00 | ||
| 2 | Wife | RR Bank A/C No.: ***...17 | $42,450.00 | ||
| 3 | Wife | RR Bank A/C No.:*** ...35 | $17,073 | ||
| 4 | Wife | Jewellery | $1,000.00 | ||
| 5 | Wife | Household contents | $500.00 | ||
| 6 | Husband | Westpac Bank A/C No.: ***...24 | $9,500.00 | ||
| 7 | Husband | Motor Vehicle 1 | $10,000.00 | ||
| 8 | Husband | Household contents from FMH | $5,000.00 | ||
| Total | $576,865.00 | ||||
| Ownership | Description | ||||
| 10 | N/A | $ | |||
| Total | $0 | ||||
| Ownership | Description | ||||
| 11 | N/A | $ | |||
| Total | $0 | ||||
| Member | Name of Fund | Type of Interest | |||
| 12 | Wife | Super Fund SS | Accumulation | $28,519.00 | |
| 13 | Husband | Super Fund TT | Accumulation | $8,470.00 | |
| 14 | Husband | Super Fund UU | Accumulation | NK | |
| 15 | Husband | Additional Super Fund | NK | NK | |
| Total | $36,989.00 | ||||
| Item No | |||||
| 15 | The Husband’s solicitors have indicated that the Husband has an additional superannuation fund and that their client will be filing a further Financial Statement to provide details of this. As at the date of the preparation of this Balance Sheet, this has not been filed or received. | ||||
Assets and superannuation
The total value of the parties’ net assets and superannuation is $613,854.
At present:
a)the wife has $61,023 in assets and $28,519 in superannuation for a total of $89,542, or approximately 14.6% of the net assets and superannuation; and;
b)the husband has $24,500 in assets and $8,470 in superannuation for a total of $32,970, or approximately 5.4% of the net assets and superannuation, and;
c)the joint net assets are $491,342, or approximately 80% of the net assets, including superannuation.
Contributions
Initial financial contributions
At cohabitation the husband owned the former matrimonial home at Suburb CC. He said he had purchased it in 2001 for approximately $235,000, using a deposit of $16,000, a guarantee from his parents and a bank loan. His ownership was conceded and the purchase price was not contested.
The wife produced evidence that the mortgage at the time of cohabitation in 2007 was approximately $206,293.20. Her evidence was that she believed that in 2007 the property was worth $300,000, as it was listed for that amount, but there were no buyers. The husband agreed but believed the figure was $315,000. Whilst on one view that suggests that the property was worth less than this sum, it is evidence of the parties’ view of the likely value of the property at the time.
As the husband bears the legal and evidentiary onus of establishing the net value of his contribution, and as he has not led any other evidence of market value at that date, the wife’s implicit concession that the house was worth $300,000-$315,000, with an established mortgage of approximately $206,000, is the highest the evidence goes. On that basis I proceed on the basis that at cohabitation the husband contributed the former matrimonial home with a net equity of approximately $100,000.
The husband also said that he was a 33% partner in a transport company business with his father and brothers. They owned a truck and did subcontracting work. The mother did not dispute this. He would drive the truck until 2008 when his licence was suspended and he decided to go back to study.
There is no evidence of the value of his interest in the partnership or what happened to it subsequently. At present there is no independent or objective evidence, other than it provided him with access to a vehicle which allowed him to make an income as a driver, and that that right ceased to have a value when he lost his licence. There was no evidence of a sale or payout of his interest. Whilst he gave oral evidence that he continued to receive some funds from the partnership, there was no independent material. The husband bears the legal and evidentiary onus of establishing the net value of his contribution by reason of his interest in this partnership. He has not met the onus to establish that this was a valuable capital contribution which benefited the financial position of the parties at cohabitation, separate to his right to earn an income until 2009.
The father gave oral evidence that at cohabitation he had approximately $115,000 in savings. In cross-examination it was put to him that he in fact had around $70,000. Consistent with his approach to evidence on parenting questions discussed above, he said “according to Mr L”. The difficulty for the father in this regard was that in his trial affidavit at paragraph 13, in his own evidence in chief on the topic, was that “I had about $75,000 saved and Ms Papke had about $25,000.” Whilst the father maintained his position in cross-examination that he in fact had $115,000, he conceded that he had no documentary evidence to support that proposition, and did not provide any explanation for the inconsistency with his sworn evidence in chief.
Given the inconsistency, and absent any independent evidence, and also noting the mother’s implicit acceptance of the figure in the range of $70,000-$75,000 in the cross-examination of the father, and that it was not put to him that it was a lower amount, I find that the father also contributed $75,000 by way of savings at cohabitation.
The father made total initial financial contributions at cohabitation of approximately $175,000.
Whilst the father’s evidence was that the mother only had $25,000 at cohabitation, her evidence that she had savings of about $45,000, after paying for wedding and other expenses, was not substantially challenged in cross-examination. In these circumstances I accept that her initial financial contribution was $45,000.
Accordingly, I find that the father contributed approximately $175,000 or approximately 80%, and the mother approximately $45,000 or 20% of the initial financial contributions made by the parties.
Contributions during cohabitation
Financial contributions
The wife worked full-time during cohabitation. At cohabitation she was earning $40,000 per annum. By the hearing she was earning approximately $77,000 per annum according to her financial statement.
The husband gave evidence that he finished driving in 2008, after his licence was suspended. After that time he was effectively a full-time student. There is no evidence of his income or earnings in the two years between cohabitation and ceasing full-time employment.
He gave evidence in his affidavit about various employments undertaken by him but did not substantiate earnings from them.
He included in his trial affidavit evidence about employment with Employer VV, and complained that the mother forced him to give up this job but that “the reason for this was never quite clear. Ms Papke had complained vaguely in the past that my wage being commission base, and I also formed the view that her parents did not like my job.” In cross-examination he agreed that this was a commission based role, but also that he never actually received any payments for it. That fact, rather than his assertion that she had become “controlling and difficult” may have explained the mother’s desire for him to leave that role, given that she was working full-time and also primarily responsible for caring for the children.
The father also gave evidence in his trial affidavit that he worked as a Customer Service Officer at Employer WW, but after some cross-examination on the topic, he agreed that was only for one year in 2013. It was put to him that he only performed that role at Employer WW on no more than five occasions, and he said he did not know how many occasions it was at Employer WW, but he was also doing it privately. He agreed it was not a weekly job, noting that he was doing other jobs and studying as well.
The father gave evidence in his trial affidavit that he worked as a labourer. In his oral evidence he said he worked for the Employer XX. It was put to him that he only worked for them two or three times, but he said he would have worked once a month over a year, but agreed it would have been no more than 12 times. In respect of the Employer YY at Suburb ZZ, it was put to him that he only did two shifts there, but he said he thought he was there for half a year on Fridays and Saturdays in the afternoons.
He also gave evidence of having worked as a driver for his uncle, and that he worked for him regularly during the 2013-2014 university holiday.
He was also working as a customer service officer at sports matches. At the date of hearing, that paid $67 per game.
There was no documentary evidence to substantiate the father’s earnings. At its highest, from 2009 he was a full-time student who did some occasional casual work as a labourer and customer service officer, and had spent one summer holiday working as a driver.
The husband also suggested that he had received a profit from his interest in the partnership, but there was no evidence to substantiate that.
It is clear that the father ceased working full-time two years post cohabitation and from that time the mother was effectively the sole breadwinner.
It was agreed by the husband that the mortgage over the property was discharged in December 2015. It is not known what the mortgage was when the father ceased full-time employment.
The father’s final submission was that “up to the time of separation the father’s financial contributions were marginally more significant”.
The mother did not directly address this question.
Assessing this as best I can, whilst the father’s initial financial contributions were significant, the fact that the wife was the overwhelming financial contributor from 2008 or 2009, and that her income met the family’s ongoing expenses, as well as the mortgage which was paid off in 2015, leads me to conclude, on the limited evidence available, that I should assess financial contributions, including initial contributions and contributions during the relationship to separation, as being broadly equal.
Non-financial contributions to property
The father gave evidence about doing work on the former matrimonial home, including laying a concrete pavement from the clothesline to the back of the house, and also installing an aviary, chicken coop and garden shed, which involved laying a concrete foundation.
This was not pressed by the father in final submissions as a factor requiring consideration in the context of the totality of contributions. I consider that this was an appropriate implicit concession and consequently give no weight to this in the overall assessment of contributions.
Contributions to family welfare, homemaking and parenting
The mother’s case was that she was overwhelming responsible for the care of the children and homemaking.
The father in his final submissions conceded that:
…his contribution to domestic duties, principally confined to the outside but also cooking, bathing the children and helping with homework, was less than the Mother’s domestic contribution.
Weighing the totality of the parties’ evidence, it is clear that the mother was the primary carer for the children, and also did the larger portion of home-making activities, and that these contributions during cohabitation favour the mother.
Contributions post separation
Post separation the father had the benefit of living in the former matrimonial home, mortgage free, until it was sold.
The father’s financial contributions have continued to be nominal, and the mother has contributed almost the entire financial amount required to care for the children.
The mother has also contributed most of the parenting and family welfare contributions post separation. Whilst the father’s case is that she has done this despite his wish to be involved, noting my findings above concerning the father’s family violence during cohabitation and his escalating conduct post separation, this was something she was required to do in order to protect the children from the father’s behaviour.
Accordingly, both the financial and the parenting contributions post separation overwhelmingly favoured the mother.
Summary and findings
For the reasons given above, I have found that financial contributions to separation to be broadly equal, the parenting contributions during cohabitation to substantially favour the mother, and that both the financial and parenting contributions post separation overwhelmingly favoured the mother.
The parties did not refer to any particular authorities. However, in considering this assessment I have in mind that, although not specifically referred to, the father’s case clearly had in mind the principles referred to in Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74, and relevant to the contribution of the major asset at the start of the relationship. The mother’s case was couched in terms, although also not specifically referred to, of the principles articulated in Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78, which put the initial financial contributions in context.
I also have in mind that there is no claim for an adjustment articulated pursuant to the principles in Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27, as refined over time, and that there must be no punitive element in the assessment of financial matters because of findings about the father’s conduct in respect of parenting set out above.
As the Full Court said in Horrigan & Horrigan [2020] FamCAFC 25 at [35]:
It is well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment. (Pierce v Pierce (1999) FLC 92-844; Singerson & Joans [2014] FamCAFC 238; Dickons v Dickons (2012) 50 Fam LR 244 and Marsh & Marsh (2014) FLC 93-576; Lovine & Connor and Anor (2012) FLC 93-515 at [39]-[42]).
Weighing as best I can, given the evidence available, the parties “myriad of contributions”, and acknowledging the inevitable “leap” (Sexton & Sexton [2012] FamCAFC 218 at [72]; Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234]) required from qualitative description to a specific quantification, I find that the wife’s contributions were 60% and the husband’s 40%.
Effect on earning capacity
There is no relevant effect of any Order I will make upon the earning capacity of either of the parties.
S75(2) matters
Section 79(4) incorporates the provisions contained in section 75(2) of the Act. Whilst I have considered entirely the section, it is for the parties to define the issues in the case. The parties submitted that the following factors were relevant.
The mother is 36 and in good health. She has a strong employment record. At hearing she was employed as a professional by Employer H, and according to her Financial Statement earning approximately $1,489 per week, and receiving a parenting benefit of $245, for a total of $1,734 income per week, with weekly expenses of approximately $1,008. She lives and supports the children on a tight budget.
As noted above, when considering Child Support as another section 60CC(3) consideration, the mother has not received or pursued child support, as the $20 per fortnight assessed would have been taken from her parenting benefit in any event, and she quite reasonably considered that the difficulty of dealing with the father and the child support system to obtain no net financial gain was not worth the time.
Apart from her yet to be determined interest in a portion of the funds in the controlled money account, she has $61,023 in assets and $28,519 in superannuation for a total of $89,542.
Pursuant to the parenting Orders in this case, she will have the care and control of both children of the marriage, and is likely to have the sole financial responsibility for the children in the future.
The mother seeks to rehouse herself, and the children, and submitted that this is another factor which should be taken into consideration.
On this basis the mother submitted that there would be an adjustment in her favour pursuant to section 75(2) of the Act.
The father is 42 and in good physical health. Apart from his yet to be determined interest in a portion of the funds in the controlled money account, the husband has $24,500 in assets and $8,470 in superannuation for a total of $32,970.
Pursuant to the Orders to be made in respect of parenting he will not be involved in the care of the children.
The father’s final submission in respect of his health and capacity for appropriate gainful employment was that:
The Father has had a consistent record of sporadic periods of employment with long periods of unemployment. This situation is unlikely to change. Additionally he has the expense of continued treatment and associated medication to deal with, what Dr NN described as, complex problems.
I note my findings about the father’s psychological condition above. A finding of depression treated by Pristiq would not justify any finding that the father does not have the capacity to work full time in work otherwise within his vocational capacity. Many people in the community with depression treated by medication work full time.
In his trial affidavit he said that at the date of hearing he was employed as a factory worker on a casual basis, working between 2 to 3 days a week. His financial statement stated that he was working casually earning $780 per week.
This establishes that he can work, at least to that extent, if he chooses to. There is no evidence that he could not work 5 days per week, on an effective full time basis in that kind of employment.
The father bears the legal and evidentiary onus of establishing more than that he has not worked, and that that situation may continue. He bears the onus of establishing that he is unable to work by reason of a factor other than choice or inclination. For the purposes of determining, as between the parties, whether there should be an adjustment in his favour by reason of his future earnings, it is his reasonable capacity for appropriate gainful employment, and not merely whether or not he is likely to pursue it, which is relevant.
If the father wished to conduct a case that he had a psychological or psychiatric impairment, which reduced his capacity for appropriate gainful employment, it was for him to lead that evidence. He did not.
Further, given that the mother’s income needs to support three people, the disparity between his earnings at hearing and hers was not as great as it might seem, by merely comparing their gross annual income figures.
I am not satisfied that the father has met the evidentiary onus of establishing that he does not have the capacity to work full-time, for example as a factory worker, if he chooses to. Extrapolating his income for 2 to 3 days work per week, to a full-time income, would give him a salary in a similar range to that of the mother, and he would only need to support himself on that salary.
S75(2) summary and findings
I am cognizant of the fact that there are limited funds in the pool.
I am satisfied that the mother’s need to meet the full financial, parenting, homemaking and family welfare needs of the children is a relevant factor, which requires a further adjustment in her favour, pursuant to the principles and provisions of section 75(2) of the Act.
Noting the ages of the children, I find that a further adjustment of 10% is appropriate and necessary to do justice and equity between the parties.
Property – Summary and findings
Given my finding that the contributions to hearing favoured the wife 60% to 40%, and that there should be further adjustment of 10% in favour of the wife pursuant to section 75(2) of the Act, the parties’ property interests should be adjusted so that the wife receives 70% and the husband 30% of the net property pool, including superannuation.
As noted above, the parties’ joint position was that the adjustment could be applied only to the $491,342 in the controlled monies account, to achieve the result determined by the Court.
As the total value of the parties’ net assets and superannuation is $613,854, for the wife to receive 70% and the husband to receive 30% of the net pool, the wife must receive $429,697.80 and husband $184,156.20.
At present the wife has $89,542 of the net assets and superannuation so she must receive $429,697.80 - $89,542 = $340,155.80 of the money in the controlled monies account.
At present the husband has $32,970 of the net assets and superannuation, so he must receive $184,156.20 - $32,970 = $151,186.20 of the money in the controlled monies account.
Any additional monies over and above the sum of $491,342 in the controlled monies account is to be paid as to 70% to the wife and 30% to the husband.
Otherwise, each party will be confirmed in their assets, liabilities and superannuation.
Independent Children’s Lawyers Costs
Section 117 sets out the relevant factors especially at (2A) and (4) and (5). I note the observations of Justice Kirby in CDJ v VAJ (1998) 197 CLR 172, particularly the observations to the effect that generally one would expect that parents should be responsible, and equally responsible for the costs of a child representative.
The ICL in the Minute of Order sought, as the ICL is required to do, a contribution from the parties towards the State’s costs in providing this service or the benefit of the children. Specifically, the ICL sought an Order that the father pay $7,586.70 and the mother $5,276.70 towards the costs of the Independent Children's Lawyer.
The father’s submission was that the cost of the ICL should be borne equally between the parties.
Given the procedural history of the matter, including in particular the need for injunctions to be issued on 20 August 2019, and the requirement for ICL to deal with the father’s extensive communications, I am satisfied that the father should pay more than half of the ICL’s costs.
As a general rule, people who require the services of the State to assist in determining the parenting proceedings should pay the cost of the ICL. However, this is an unusual case. The mother has been the victim of extensive and long-term family violence at the hands of the father. I identify no action on her part which has required involvement of an ICL in these proceedings.
While I will make the Order that the mother pay the costs of the ICL as sought, I would note that in my view this would be an appropriate case in which the relevant Officers of the Legal Aid Commission of New South Wales might give consideration to the exercise of their discretion to waive the mother’s obligation to pay the sum.
Costs - parties
The mother seeks indemnity costs. The father submitted that no submissions had been made and reserved his position.
It is not appropriate to make an Order as to costs without the parties having had the opportunity to consider these findings and to make submissions.
However, given the father’s conduct to date, including in respect of certain aspects relating to the sale of the former matrimonial home which have not been dealt with in this judgment, and noting the mother’s likely costs of the proceedings and the risk of dissipation of funds if the property Orders are given effect prior to the consideration of any cost applications to preserve some funds if such an application is made.
Referral of the papers
The Family Law jurisdiction is one in which passions run high and contraventions are, unfortunately, common. The Court will be cautious in an exercise of the power to refer a matter to prosecuting authorities. It will always be a question of degree (Malpass & Mayson [2000] FamCA 1253).
However, the Court does have a duty to refer matters which appear to involve serious misconduct. (In the Marriage of P & P (1985) 9 Fam LR 1100).
In particular in these proceedings, the father’s communications with the mother’s solicitor and his staff, the ICL and his staff, the family therapist, and also the former ICL which I have not considered above as it was not necessary to my findings, were in my view attempts to improperly influence or affect the capacity of the mother to conduct her case before this Court, of the ICL to represent the children’s interests before this Court, and of the family therapist to provide the Court with independent expert evidence.
The fact that these communications continued after the Court made specific injunctions directed to stopping those communication is also a matter of great concern.
The legal practitioners who appear before this Court, in the family law jurisdiction in particular, are entitled to do so without fear of threats, intimidation or harassment, as are their staff. Expert witnesses, including Family Consultants or Family Therapists undertaking reportable family therapy and other experts, must also be certain that they will be provided with the full protection of the law when they come here to assist this Court to determine the best interests of a child.
If legal practitioners and experts are not guaranteed protection, the capacity of the Court to engage in the due administration of law as it relates to the protection of the best interests of children, in particular, will be severely diminished.
These are matters which are, in my firm view, the responsibility of the State to investigate and if appropriate prosecute.
The Court is not required to, and in this case I do not think it is appropriate to hear from the parties on the question of the referral.
Accordingly, I will make Orders referring the papers.
I certify that the preceding three hundred and seventy-four (374) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Associate:
Date: 14 August 2020
[1] Hon. John Fogarty AM in ‘Unacceptable Risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261.
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Injunction
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Costs
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Remedies
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Procedural Fairness
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Jurisdiction
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Breach
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