Partington & Cade
[2008] FamCA 945
•31 October 2008
FAMILY COURT OF AUSTRALIA
| PARTINGTON & CADE | [2008] FamCA 945 |
| FAMILY LAW – CHILDREN – allegations of sexual abuse made against father – discussion of standards of proof applicable to positive finding of sexual abuse and finding of unacceptable risk – finding that children at unacceptable risk of abuse in father’s unsupervised care. FAMILY LAW – CHILDREN – with whom children live and spend time – application by mother to relocate from Tasmania to New South Wales – father’s application for children to live with him must fail given finding of unacceptable risk – where mother opposes father spending any time with children – s 60CC factors – need to maintain children’s relationship with father and protect children from abuse – history of frequent and blatant breaches of Court orders by mother, including moving interstate with the children – failure of mother to support or encourage children’s relationship with father – assessment of parties’ competing proposals – relocation application refused – children to be returned to Tasmania – consideration of Full Court decision of Sampson and Hartnett (No 10) (2007) FLC 93-350 – mother to have sole parental responsibility – father to spend supervised time with children and have telephone communication. FAMILY LAW – PROPERTY SETTLEMENT – determination of asset pool – treatment of legal fees – whether certain moneys loaned or gifted to parties. FAMILY LAW – PROPERTY SETTLEMENT – contributions – where contributions essentially equal during relationship – where mother’s contribution greater post separation due to her care of children – 15% adjustment to mother due to s 75(2) factors – property to be divided 70%/30% in mother’s favour. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 75(2) & 79 Evidence Act 1995 (Cth) s 140 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Fogarty, J, ‘Unacceptable risk – A return to basics’ (2006) 20 Australian Journal of Family Law 249 Kelly, J B and Lamb, M E, ‘Developmental issues in relocation cases involving young children: When, whether and how?” (2003) 17(2) Journal of Family Psychology 193 |
| APPLICANT: | Ms Partington |
| RESPONDENT: | Mr Cade |
| FILE NUMBER: | HBF | 1989 | of | 2004 |
| DATE DELIVERED: | 31 October 2008 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | BURR J |
| HEARING DATE: | 29, 30 April 2008, 1,2 May 2008, 18 June 2008, 3 July 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR FITZGERALD |
| SOLICITOR FOR THE APPLICANT: | FITZGERALD & BROWNE |
| COUNSEL FOR THE RESPONDENT: | MR McGUIRE |
| SOLICITOR FOR THE RESPONDENT: | BLISSENDEN LAWYERS |
| INDEPENDENT CHILDREN’S COUNSEL: | MS MOLLROSS |
INDEPENDENT CHILDREN’S SOLICITOR: | OGILVIE JENNINGS |
Orders
That all current Orders of this or any Court of competent jurisdiction be and the same are hereby discharged.
That the mother’s application for permission to relocate to the State of New South Wales with the children F born … December 1999 and C born … April 2001 be and the same is hereby refused.
That at her expense in all respects the mother do return with the said children to Hobart in the State of Tasmania by no later than 28 December 2008.
That the said children live with the mother and that she have sole parental responsibility for the said children.
That the mother enrol the said children in and ensure that they complete a Protective Behaviours Programme nominated by the Independent Children’s Lawyer.
That the father spend time with the said children as follows:-
(a)pending the said children’s return to Tasmania as ordered above, from 12.30 pm until 2.30 pm on each of Saturday 1 November 2008 and Saturday 29 November 2008 at and supervised by the W (NSW) Centre;
(b)upon the said children’s return to Tasmania:-
(i) for a period of six [6] months, on each alternate weekend for such period of time as can be provided by the H Children’s Contact Service (“CCS”) but being for a period of no less than two [2] hours on each occasion, with liberty to the father to include members of his extended family at times and on dates solely within his discretion;
(ii) at the conclusion of the aforesaid period of six [6] months and until the commencement of the periods of time consequent upon the report and recommendations ordered in paragraph 6(b)(iii) hereof, for a period of six [6] hours on one day of each alternate weekend, with such occasions to take place at and to be supervised by the CCS for a period of one [1] hour at both the commencement and conclusion of each of those two [2] periods to the effect that the balance of the period of time may be spent outside of the CCS premises UPON CONDITION that such time is supervised at all times by any of, some of or all of the father’s stepmother, the father’s sister or the father’s mother or some other person agreed between the parties.
(iii) at the conclusion of the first two [2] of the aforementioned periods of time the father is to spend with the said children pursuant to paragraph 6(b)(ii) of these Orders, Dr A or some other single expert appointed by the Independent Children’s Lawyer do undertake an updated family assessment with a view to being able to report to the Independent Children’s Lawyer, the parties and if necessary the Court, how the said children have responded to their time spent with the father and whether or not it is appropriate to move to unsupervised periods of time or different forms of supervision.
That a copy of these Orders and the Reasons attached to these Orders be released and provided by the Court to Dr A and Ms S.
That upon the commencement of the periods of time spent by the father with the children consequent upon the report and recommendations contained in the updated assessment to be conducted by Dr A or some other person pursuant to paragraph 6(b)(iii) of these Orders, the appointment of the Independent Children’s Lawyer be discharged.
That the mother, her husband Mr B, the said children and the child Z be entitled to the exclusive use and occupation of the property situated at L (the L property) for a period of twelve [12] months from 28 December 2008 or the date upon which the mother returns to Tasmania with the said children, whichever is the earlier, UPON CONDITION that the mother pays and discharges as and when they fall due all mortgage instalments, rates, taxes and like outgoings in respect of the L property to the exoneration of the father and PROVIDED THAT the mother is at liberty at any time to vacate the said premises and terminate her occupation of same upon giving at least two [2] weeks prior written notice to the father.
That the father communicate with the said children by telephone at 7.00 pm each Wednesday, commencing on Wednesday 12 November 2008, on the following basis:-
10.1the father will telephone the children on the mother’s landline telephone number and, if the children are not available on this number, the father will telephone the children on the mother’s mobile telephone number;
10.2the mother will ensure that either the landline or mobile telephone is accessible and available to the children at the ordered time;
10.3the father will call the telephone number at the ordered time;
10.4that within seven [7] days of the date of these Orders the mother will provide to the father, in writing, details of her landline and mobile telephone numbers.
That each party keep the other informed at all times of their residential address.
That the father be at liberty at his expense to obtain copies of the children’s school reports, school photographs, newsletters and the like and to attend all parent / teacher interviews (provided they are arranged at times separate to those to be attended by the mother), school functions, concerts, events and extra-curricular activities arranged by the children’s school(s).
That each party be entitled to any and all information from any medical practitioner, other health professional or hospital which the children attend for the purposes of treatment.
That each party be restrained and an injunction is hereby granted restraining each of them from denigrating the other to, or in the presence of, the children and from permitting any other person to do so.
That the father purchase an exercise book to be used by the parties as a communication book to exchange relevant medical and other information in relation to the children and that such communication book be exchanged by the parties on each handover occasion.
That by way of settlement of property or variation of settlement of property :-
16.1On or before 28 November 2009, the mother have the option to purchase the father’s interest in the L property for FOURTEEN THOUSAND DOLLARS [$14,000] upon written notice to the father of her intention to exercise the option.
16.2That upon exercise of the aforementioned option by the mother:-
(a)the mother do within twenty-eight [28] days pay to the father the sum of $14,000;
(b)contemporaneously with the payment by the mother to the father of the sum of $14,000 pursuant to paragraph 16.2(a) hereof, the father do forthwith transfer to the mother at the mother’s expense in all respects all that his right, title, estate and interest both at law and in equity in the L property;
(c)the mother do thereafter duly pay and discharge to the exoneration of the father all mortgage instalments, rates, taxes and other outgoings in relation to the L property and do indemnify the father against any liability in relation to any such payments
16.3That in the event that the mother fails to exercise the aforesaid option or otherwise chooses to elect for the sale of the L property then by no later than 28 December 2009 the L property be forthwith placed on the market for sale with such agent and upon such terms and conditions as the parties may agree or in default of agreement, as may be determined by the President of the Real Estate Institute of Tasmania and that the gross proceeds of the sale thereof be distributed as follows:-
(a)firstly, in payment of all and any real estate agents and auctioneers fees and commissions and any other costs associated with the aforesaid sale;
(b)secondly, to discharge the memorandum of mortgage registered on the title of the said L property with the balance then remaining being described hereafter as “the net proceeds of sale”;
(c)thirdly, in payment to the mother of 70% of the net proceeds of sale;
(d)fourthly, in payment to the mother from the net proceeds of sale the sum of $10,800 (representing 70% of the value of the father’s superannuation entitlements);
(e)fifthly, in payment to the father of the balance of the net proceeds of sale then remaining.
16.4That the father’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the mother:-
(a)the mother’s personal effects, clothing and jewellery;
(b)the furniture and household effects in the wife’s possession or situated in the L property;
(c)the mother’s savings and investments.
(d)any rental income received for the L property.
16.5That the mother’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the father:-
(a)the father’s personal effects, clothing and jewellery;
(b)the furniture and household effects in the father’s possession;
(c)the father’s Toyota Corolla Hatchback motor vehicle;
(d)the father’s savings and investments;
(e)the father’s superannuation benefits and entitlements.
(f)the balance of the proceeds of sale of D property.
16.6That the father do hereafter duly pay and discharge to the exoneration of the mother all amounts due and owing in relation to:-
(a)the father’s HECS debt;
(b)the father’s Student Financial Supplement Loan;
(c)any balance due and payable to the father’s father;
(d)VH Excavations;
(e)J Electrical
and do indemnify the mother against any liability in relation to any such payments.
16.7That the mother do hereafter duly pay and discharge to the exoneration of the father all amounts due and owing in relation to:-
(a)the mother’s HECS debt;
(b)the outstanding rates and taxes on the L property;
and do indemnify the father against any liability in relation to any such payments.
16.8That save and except as otherwise specified in these Orders, henceforth each party shall discharge without calling upon the other to contribute thereto the debts and liabilities contracted by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
16.9That if either party shall refuse or neglect to execute any documents to give effect to the terms of these Orders within seven [7] days after the same shall have been tendered to him/her by or on behalf of the other party for that purpose then and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his / her opinion it shall be necessary so to do, to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
IT IS NOTED that publication of this judgment under the pseudonym Partington & Cade is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: HBF 1989 of 2004
| MS PARTINGTON |
Applicant
And
| MR CADE |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The applications
There are two children of the parties, F born in December 1999 and C born in April 2001. The children are thus currently 8 and 7 years of age respectively.
I have before me for determination applications for both parenting and property orders.
The main issues for determination in relation to the applications for parenting orders are:-
3.1.whether the parties should enjoy shared parental responsibility or whether sole parental responsibility should be vested in the mother;
3.2.with whom the children should live;
3.3.whether the father has sexually abused the children;
3.4.what time ought to be spent by the parent with whom the children do not live;
3.5.whether time spent by the father with the children will present an unacceptable risk to the children; and
3.6.whether the mother ought to be permitted to relocate with the children to northern New South Wales.
Background
The father is 32 years of age, having been born in July 1976. The mother was born in October 1976 and is thus 32 years of age.
The parties met in W in New South Wales in 1994 while both were working at a fast food outlet. The parties commenced cohabitation in 1995. The mother was studying a diploma at TAFE and working in two other part-time jobs. The father was studying at university and was receiving Austudy payments.
The mother spent six months on a working holiday in New Zealand in 1996 and then travelled around New Zealand with the father for two months before they returned to W and resumed their cohabitation.
In 1997, the mother worked full time at a café while the father continued his university studies. The mother then commenced university studies with both parties receiving Austudy payments.
The parties moved to Tasmania together in 1999. The mother continued to receive an Austudy allowance whilst she continued her university studies and the father received Newstart benefit payments as he was unemployed.
The parties moved back to W in New South Wales later in 1999. The mother studied part time at university and undertook a Certificate in Children’s Services.
The parties’ first child F was born in December 1999.
The parties were married in September 2000 in W. The father commenced honours studies at University.
The parties’ second child C was born in April 2001.
The parties moved to Tasmania again in 2001. The father commenced a surveying course at TAFE and received Austudy payments.
Also in 2001, the parties purchased a house property at D for $42,000. The father says the parties borrowed $6,500 and that they were given $5000 by his grandmother towards the deposit on the property.
The father commenced full time employment with a travel company in November 2002.
In 2003, the parties purchased a property at L in Tasmania and purchased an adjoining block later that year. The parties borrowed $125,000 on mortgage for the purchase of this property. The parties moved from D to rental accommodation in L and commenced the building of a house on the land at L. The father moved to working part-time with the travel company.
In 2004, the parties began to build their house at L with the assistance of a friend, Mr B.
On 6 September 2004, the father was involved in a car accident. The father was charged with dangerous driving but this charge was later dismissed. As a result of the accident, the father was unable to work in September and October 2004.
The mother spent 2 weeks in Sydney with the children in September 2004.
In early December 2004, the parties’ property at D was placed on the market for sale.
On the mother’s version of events, the parties separated on or about 19 December 2004 when the mother took the children to stay with her sister in Sydney. The father says they separated on 20 April 2005. On either version, the parties thus resided together for a period of approximately 9 years.
On 24 December 2004, the father filed an application for a Recovery Order. On 12 January 2005, Hannon J granted the application for the Recovery Order and the mother and the children returned to Tasmania on 26 January 2005, resuming occupation of the former matrimonial home at L.
On 4 February 2005, orders were made for the children to spend time with the father on alternate weekends from 5pm Thursday until 5pm Sunday and each other week from Thursday after school until the commencement of school on Friday. The father was also restrained from consuming illicit drugs during or 24 hours prior to spending time with the children or allowing any other person to consume illicit drugs in the presence of the children.
On the father’s version of events, the parties reconciled on or about 9 February 2005 and did not separate finally until 20 April 2005 following an argument between the parties in their car.
On 24 March 2005, the parties’ property at D was sold for $152,000. This sum was applied to discharge the mortgage on the property and $62,000 was alleged by the father to have been used to repay debts of the parties.
The mother states that on 13 July 2005, the child F disclosed to her that the father “stays up all night with me, giving me tickle scratchies. He tickles all around my vagina.” The mother states that the children made several further disclosures in July 2005.
The mother took the children to be examined by Dr H on 15 July 2005. The child F was examined and the Department of Children’s Services was contacted.
The mother reported the children’s disclosures to the police on 28 July 2005 and on the same day F was interviewed by the police.
The orders for the father to spend time with the children were suspended by the Court on 19 August 2005. Orders were made for the father to speak with the children by telephone four times per week and for there to be supervised time at the H Children’s Contact Service (“CCS”).
F was interviewed by the police for a second time on 8 December 2005.
The mother entered into a relationship with Mr B in or about late 2005 and they were married on 3 March 2007.
On 9 December 2005, Child and Adolescent Psychiatrist, Dr A, interviewed the children and the parties. A report was prepared on 7 February 2006.
The father was charged by the police on 25 January 2006 with maintaining a sexual relationship with a person under the age of 17 years, namely F.
On 4 December 2006, the criminal charges against the father were withdrawn.
On 22 December 2006, the mother moved from Tasmania to New South Wales with the children. The children commenced school at Y Public School on 30 January 2007.
The parties were divorced on 16 February 2007.
On 26 February 2007, orders were made by the Family Court for the mother to return the children to Tasmania on or before Wednesday 7 March 2007 and ordering that the children spend supervised time with the father.
The mother returned to Tasmania on 5 March 2007 with the children, returning to New South Wales later in March. The mother again travelled to Hobart in April 2007 with the children, returning to New South Wales later that month.
On 15 May 2007 the H CCS prepared a report as to the father’s times meant to have been spent with the children but which were cancelled by the mother for various reasons.
On 17 May 2007, the first of two Family Reports by Family Consultant, Ms S, was released.
On 6 June 2007, the second Single Expert Report prepared by Dr A and dated 1 June 2007, was released.
The mother again returned to Tasmania with the children on 2 July 2007 for the hearing of her application for interim relocation to New South Wales until the final hearing. Orders were made restraining the removal of the children from Tasmania and on 16 July 2007 the mother’s interim application was dismissed.
A further Family Report prepared by Ms S was released on 13 July 2007.
A third Single Expert Report of Dr A was released on 15 July 2007.
On 19 September 2007 a report from H CCS was released regarding the father’s supervised time spent with one or both of the children on 11 August 2007, 25 August 2007 and 8 September 2007.
On 9 November 2007 the father consented to the mother taking the children to New South Wales for a holiday from 15 December 2007. She was due to return to Tasmania with the children on 26 January 2008. She did not do so. The father missed several periods of time with the children scheduled for their return and had not seen them at the commencement of the trial proceedings on 29 April 2008 since 15 December 2007.
In March 2008, the mother gave birth to her daughter Z, a child of her marriage to Mr B.
On 2 May 2008, after four days of hearing, I adjourned the trial part-heard and made orders for the father to spend some additional supervised times with the children at the H CCS.
On 14 May 2008 I set the date for final addresses, ordered some more supervised time for the father with the children at H CCS and gave the mother leave to remain living in Y in New South Wales with the children pending the final determination of the Court.
A further report as to the father’s time spent with the children was prepared by H CCS on 22 May 2008.
The evidence
The father gave evidence in support of his application and called evidence from his mother, his sister, a friend Mr R, his father and his step-mother.
The mother gave evidence and also called evidence from her sister, her friend Ms V, her husband Mr B, Forensic Scientist Mr O and the father’s former solicitor Mr Michael Trezise. It was agreed too that the affidavit of Ms E filed on 2 November 2006 was to be received into evidence without the need for her to be called for cross examination.
Evidence was called on behalf of the Independent Children’s Lawyer from the Single Expert, Dr A, the Family Consultant, Ms S, the principal of the Y Public School in New South Wales, Mr U and the co-ordinator of the H CCS, Ms N. Ms N filed three affidavits in these proceedings on 28 May 2007, 24 September 2007 and 2 July 2008, which affidavits annexed various reports as to the father’s time spent with the children. All three reports were agreed as being in evidence before me. It was further agreed that the affidavits of Dr AM filed on 14 September 2007, Ms SR filed on 24 September 2007 and Mr DY also filed 24 September 2007 were in evidence before me without the need for them to be called for cross examination.
In this matter I am not able to make a general finding as to the creditworthiness of either party and therefore be able to indicate a preference for the evidence of one over the other when in conflict. I have serious concerns in a number of respects about the evidence of each. I thus identify those relevant issues of credit within my consideration of the specific issues requiring my determination.
I have no difficulty though in indicating my view of the creditworthiness of the mother’s husband, Mr B. He gave evidence that he told the police he had heard the disclosures of sexual abuse made by F as against her father. In cross examination, Mr B admitted that he lied about that to the police. Given the importance and significance of that issue in the Court’s determinations and in pursuing the difficult task of determining what outcomes would represent the best interests of these children in this case, his lack of total honesty in that regard is a very serious matter. I am unable to place any reliance upon any of the evidence he gave to this Court.
Sexual abuse allegation
Standards of proof
A serious allegation of sexual abuse has been made against the father. Whilst I must apply the civil standard of proof and be satisfied as to that allegation on the balance of probabilities, the seriousness of the allegation and the potential consequences and ramifications of same require a variation of that standard as defined by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 where Dixon J said:-
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
That passage was cited with approval by the High Court in M and M (1988) FLC 91-979 where at page 77,081 their Honours said:-
“His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute.”
The Briginshaw test has been adopted in Section 140 of the Evidence Act 1995 (Cth) and is expressed in the following terms:-
“140.(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.”
In WK v SR (1997) FLC 92-787, quoted in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192, the Full Court said this at 84,694:-
“47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.”
In Re W (Sex Abuse: Standard of Proof) (supra), the Full Court confirmed the comments above in WK v SR (supra) regarding the very high standard to which the Court needs to be satisfied on the balance of probabilities that sexual abuse has actually occurred, stating at 79,217:
“Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.”
It is clear that a positive finding of sexual abuse should not be made “…unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.” (See W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at 79,910).
I would have applied this test when making my findings in relation to the allegations of sexual abuse. However, in response to an enquiry by me, neither Counsel for the mother nor for the Independent Children’s Lawyer suggested that the evidence supported a finding by me on that standard that the father had sexually abused his two young daughters.
The issue for determination by me is therefore whether there is an “unacceptable risk” of sexual abuse. The term “unacceptable risk” was established by the High Court in M and M (supra). Their Honours at 77,081 stated:-
“It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.”
A little later, the learned Judges of the High Court said:-
“In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk.”
After reviewing a number of attempts by the Courts to provide a formulation to resolve that dilemma and to assess the risk, the High Court settled upon the following (also at page 77,081):-
“To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
The Honourable John Fogarty AM, in his paper ‘Unacceptable risk – A return to basics’ (2006) 20 AJFL 249, provides the following summary of the principles emerging from M and M (supra), at 265:
1.The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2.The nature of the risk is best expressed by the term “unacceptable risk”. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3.Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on the issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4.The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5.The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6.The onus of proof in reaching that conclusion is the ordinary civil standard.
7.But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard. [Emphasis added]
The Honourable Mr Fogarty also suggests it may now be preferable to refer to the statutory formulation of the rule in Briginshaw, namely s 140 of the Evidence Act 1995 (Cth).
In the recent case of Johnson and Page (2007) FLC 93-344, the Full Court indicated their general agreement with the Honourable Mr Fogarty’s seven point summary, at 81,891:
“71. We generally agree with Mr. Fogarty's seven point summary (see paragraph 68). We assume point seven of that summary is directed to the requisite standard of proof. We think a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof (but see Malec v J C Hutton Proprietary Limited (1990) 169 CLR 638).
72. We also agree with Mr Fogarty's view that reference to the Evidence Act, rather than Briginshaw, is appropriate particularly having regard to s 140(2)(c) of that Act.”
In W and W (Abuse allegations: unacceptable risk) (supra) the Full Court stated at 79,910:
“The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.”
In Johnson and Page (supra) the Full Court, at 81,888, cited the decision of Napier and Hepburn (2006) FLC 93-303, in which the following passage from Fogarty J’s judgment in N and S (1996) FLC 92-655 at 82,713 on the question of unacceptable risk, was cited with approval:
“One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content to the notion of ‘unacceptable risk’. Though the purpose behind the notion is to assist a court in determining what is in the child’s best interests, the importance of asking the question separately lies in its specific guidance to courts faced with the difficulties which cases of sexual abuse raise. There is a danger that it will be treated just as an expression which must be ritually used in judgments which involve questions of sexual abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of sexual abuse, and so to be seen to be applying the correct legal test. Those words seem sometimes to be used without an appropriate degree of consideration.
Because it may be said that in every case there is, at least in theory, a risk of harm, it is inevitable that courts will have to make some effort to quantify the relevant risk. In S and S, [1993] NZFLR 657] Thomas J addressed the difficulty involved here. At 670 his Honour said:
“Qualifying words such as ‘unacceptable’, ‘real’, ‘serious’ or ‘appreciable’ are merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child.”
In the Court of Appeal, [[1994] NZFLR 26] Gallen J, Cooke P and Hardie Boys J agreeing, said at 33-4:
“It is in the assessment of the risk that the difficulties arise. The cases all indicate that it is not ‘any degree of risk’ which is sufficient and various adjectives have been used to indicate the degree of risk which can justify appropriate action on the part of the courts. The four most commonly used adjectives are ‘unacceptable, real, serious or appreciable’. None are particularly helpful and discussion of them tends to degenerate into a matter of semantics. The judge in this case indicated that they were merely methods of expressing the fact that the risk has a foundation in the evidence which is incompatible with the welfare of the child. While at first sight that is a helpful formulation, the same difficulties arise in determining what kind of foundation is necessary and what kind of risk can properly be said to be incompatible with the welfare of the child.
In the end I doubt whether a court can go beyond saying that there must be actual evidence which at the very least gives rise to the conclusion that behaviour may have occurred or may occur which has had or could have deleterious effects on the child concerned. It must be more than mere conjecture and need not go as far as the proof which would justify a conviction. From that it will be seen that there are two emphases to be kept in mind. The first is the foundation from which the conclusion may be drawn and the second and by far the more important, is the effect which can rationally be predicted on the child. In considering the whole matter as the judge points out, it is necessary to bear in mind the serious consequences which can occur to a child if he or she is subjected to behaviour which is inappropriate in this area.
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.
In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. The notion of ‘unacceptable risk’ must be assessed in light of the grave consequences of sexual abuse to a child’s development, as well as the effects of future contact with the party. As Thomas J said at 670:
“In assessing whether the risk is unacceptable, the court is not merely evaluating the risk that sexual abuse between the parent and child will occur. Inherent in the risk to the child are the potentially severe and destructive consequences of sexual abuse should it in fact occur. These potentially ruinous consequences do not need repeating. The probability of lasting emotional and psychological damage to the child, generally becoming acute during adolescence, is well-documented.”
Against this background, the resolution of any allegation itself is what the High Court at 12 Fam LR 610; [1988] FLC 77,080 termed ‘subservient and ancillary to the court’s determination of what is in the best interests of the child’. This recognises that sexual abuse is not a matter which lends itself to convenient characterisation in traditional evidentiary terms, such as may be appropriate for more public and easily detectable offences. Though ‘the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof’, to require such a finding as a prerequisite to satisfaction of the unacceptable risk test would make no allowance for the reality and nature of sexual abuse or the essential task of the court — the promotion of the welfare of the child. The High Court has emphatically rejected such an approach.
In M v Y, [[1994] NZFLR 1] Hardie Boys J (Cooke P and Gallen J agreeing), warned against the danger of allowing a resolution of the allegations to overwhelm the issue at 8:
“It is all too easy — and it is understandable — where an allegation of gross misconduct towards the child is levelled at a parent, for the focus to shift from the welfare of the child to the truth of the allegation. Its truth will doubtless be very important in an assessment of the child’s welfare, but it will not always be crucial. But for the accused parent, most particularly if the accusation is false, its refutation may seem essential; while the accuser, firmly believing it, may see it as essential to sheet it home. Along the way, it is easy to lose sight of the child, innocently caught up in the midst of the strife.”
If the court is able to make a balance of probabilities finding that sexual abuse has taken place, that finding will have a powerful, often decisive, bearing on any contemplated orders. But an inability to be so satisfied will not have such an effect. The court must still ask the ‘unacceptable risk’ question. An example of this is Thomas J’s approach at 681-2:
“I do not consider that it has been established on the balance of probabilities having regard to the seriousness of the allegations that Mr S sexually abused his son. But I am not prepared, Temm J’s decision in Y v M notwithstanding, to make a finding, applying the same standard of proof, that Mr S did not sexually abuse his son. Whether one likes it or not, the answer to that question remains uncertain, and it is that uncertainty which must be taken into account in determining what is in L’s best interests.”
This is not to suggest that there is a two-step approach which must be followed, but a reminder that the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.” [Full Court’s emphasis]
In Napier and Hepburn (supra), Bryant CJ and Kay J also stated with respect to reaching a finding of unacceptable risk, at 81,120: -
“82. We find it difficult to understand how those factors, without a further explanation by the trial judge, could safely lead the trial judge to conclude that there was an unacceptable risk of abuse. In order to reach that conclusion the trial judge needed to evaluate not only the seriousness of the behaviour if it occurs, that is that the behaviour would be unacceptable, but also the risk that the behaviour is likely to occur.
…
84. There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.”
The Full Court in Johnson and Page (supra) at 81,890 also referred to the following comments by Warnick J in Napier and Hepburn (supra), adopted with approval in Potter and Potter (2007) FLC 93-326:
“I also wish to add some comment on what I perceive as a further goal of fulsome discussion by a trial judge of the component aspects that may, in any given case, lead to a conclusion of “unacceptable risk” of harm to a child. That goal is to provide a platform, for any future consideration of the family’s circumstances. Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can illuminate paths by which a family (or a court making decisions for a family) might subsequently explore options for change. (paragraph 114)”
In Johnson and Page (supra) the Full Court held at 81,892:
“We do not accept that the trial Judge rejected the mother’s position that there was an unacceptable risk because she had been required to satisfy an onus of proof applying an “excessively high test”. The onus of proof is not in doubt. It is the civil standard in accordance with s 140 of the Evidence Act. The evidence necessary to satisfy a finding of actual sexual abuse, as distinct from unacceptable risk, is accommodated by s 140(2)(c).” (Paragraph 77)
There is therefore no doubt that the standard of proof applicable to a finding of unacceptable risk is the ordinary civil standard, namely on the balance of probabilities.
It is that standard which I have applied in making my findings as to whether the children face an unacceptable risk of sexual abuse at the hands of the father in the event that they live with him or spend time with him.
Evidence of sexual abuse
The mother contends that the father has sexually abused the children and therefore should not be permitted to succeed in his application to have the children live with him or to spend any time with the children. The father denies the allegations and is seeking that the children live with him and spend time with the mother for two days a week in the event that she is living in Tasmania. In the event that she chooses to live away from the children in New South Wales, then for half school holidays.
As I indicated earlier, at trial neither Counsel for the mother nor Counsel for the Independent Children’s Lawyer argued that the Court should make a finding of sexual abuse of the children by the father. Rather, it is a question of whether there is an unacceptable risk of sexual abuse.
The allegations of sexual abuse were raised as a result of alleged disclosures made by the children in June and July 2005. These alleged disclosures and consequent sexualised behaviours are detailed in the mother’s affidavit of 19 September 2007. They include:
Paragraph 56
“In early June 2005, [F] said to me, ‘Daddy always sleeps with us at his house’.”
Paragraph 57
“On 17 June 2005, [C] wet her pants at preschool twice and began wetting the bed each night, on some occasions, up to three times. She had been successfully toilet trained and had not wet herself for around one year prior to this time. [C] said to me, ‘Daddy lip-kisses me.’ She also said, ‘He kisses me like this.’ She then started to suck my lower lip. I immediately stopped her and said, ‘Stop that [C]. She also said, ‘I slept on Daddy’s tummy’.”
Paragraph 58
“On 18 June 2005, [F] said to me, ‘Can we touch tongues? Daddy does it’. I told her I didn’t want to.”
Paragraph 62
“On Wednesday 29 June 2004, [C] said to me ‘daddy has a big booby on his bottom’. She does not know what a penis is yet and does not know that word. I took it to mean that she was talking about [the father’s] penis. On that same day [C] mentioned again about lip kisses. She said ‘daddy sometimes gives me lip kisses, do you want one’. I said ‘No, you can kiss me on the cheek’. She tried to pull my bottom lip down like she had done before, but I stopped her.”
Paragraph 63
“On 6 July 2005 [Mr B] who was merely a friend at that stage was on holidays from [W], New South Wales with his six year old son, [J]. [C] asked [Mr B] if he would like a lip kiss like her daddy does. I was present when this occurred.
Paragraph 64
“On Tuesday 12 July 2005 I noticed that [F] had a red vagina. She had called out to me in bed saying she could not sleep because her vagina was itchy and sore. I had to give her a bath to soothe her. Her vagina was quite inflamed all around the opening and also going inside as well. That was following a weekend visit. …”
Paragraph 66
“On Wednesday 13 July 2005, [F] was upset when she went to bed saying ‘daddy stays up all night with me, giving me tickle scratchies. He tickles around my vagina. I looked at her and asked ‘really’. She replied,
‘Yes, but not on the inside’. She then asked me ‘Do you want to tickle scratchie my vagina’. I told her that is not somewhere that should be tickled. I told her that it was hers and not for anyone else.”
Paragraph 67
“On Monday 18 July 2005, I stayed at a friend’s, [Ms V], with the kids at [Ms V’s address]. When I was putting [F] to bed she asked me, ‘mummy, can you tickle scratchie my bottom like daddy?’ “
Paragraph 74
“[F] was upset in her bed, she asked me ‘Can I have a tickle scratchie?’ I tickled her back and she asked if I could tickle scratchie her face like daddy. I gave her a little tickle on her face. She said, ‘Daddy tickle scratchies here’ and opened her mouth and pointed right inside her mouth. She then said ‘Daddy tickle scratchies inside my vagina’. I asked [F] if she gives daddy tickle scratchies, and she said ‘no daddy likes rubs’. She said ‘I rub his back, his ears, his face, and I rub his penis’. I asked her if daddy asks her to do this and she said no, ‘I ask daddy’. She had a funny look on her face when she said this like she was worried, embarrassed or a bit scared. I asked her ‘what does daddy do?’ and [F] said, ‘he just lays there and doesn’t do anything’. [F] was silent then for about 5 seconds and said ‘and then pop’. I didn’t say anything more to her and she went to sleep.
Paragraph 75
“On 24 July 2005, my friend [Ms V] was visiting. During the visit, [C] said to [Ms V] in my presence, ‘Daddy lip-kisses me’. Later that day, [C] said to me, ‘I feel sick in the tummy when I am at Daddy’s’. I said, ‘Why do you feel sick?’ She shook her head. I asked repeatedly. [C] refused to answer. Later that night, I was tucking [F] into bed. She said to me, ‘Can I have a tickle-scratch?’ she pointed to her mouth and then her vagina. She said, ‘Daddy likes rubs. I rub his back, his ears, his face and his penis’. I said, ‘What does Daddy do?’ She said, ‘Nothing he just lies there’. She also said, ‘Its me and Daddy’s secret’.”
Paragraph 76
“The next day [C] said to me, ‘My tummy was sick in daddy’s bed’. I said, ‘Why? What happened?’ [C] said, ‘Something bad, something very bad, very bad.’ She then said, ‘There is a bad fairy and it squashes my tummy and goes up and down’. On the same day [F] said to me, ‘When Daddy comes in, I pretend I’m asleep. I don’t like it when he scratches my vagina and bottom. If I need to wee, he puts his finger in and if some spills over, he puts his mouth over it.’ She then said, ‘I do whatever he wants. I don’t like rubbing daddy’s bottom and penis because it sometimes wee on my hand’.”
The mother says that, alarmed by these disclosures, she made an appointment to see Dr K at the LE Health Centre on 27 June 2005. Dr K records the mother’s concerns in progress notes which she made at the time, and which are annexed to the affidavit of Dr AM filed on 14 September 2007. The mother is recorded by Dr K as reporting:-
“[Mother] worried about her 2 daughters, aged 4 and 5. Separated from husband about 6 mths ago. Uncomfortable with what they are saying about access visits on weekends with their father – that they all sleep in the same bed, that ‘Daddy touches tongues when he kisses me’.
An appointment was made for the children to see Child Protection authorities.
Ms V gave evidence for the mother. She records in her affidavit filed on 19 September 2007 that on 24 July 2005 at the mother’s premises she heard the following disclosures made by F to the mother:-
Paragraph 6
“I witnessed [F] telling [the mother] the following:
· ‘When he comes in (her father), I pretend I’m asleep’
· [The mother] asked, ‘Do you have tickle scratches?’
· [F] replied, ‘Yes, later’.
· [The mother] asked, ‘Where?’
· [F] replied, ‘Everywhere, in my nose and poo’.
· [The mother] asked, ‘Where do you like it?’
· [F] replied, ‘My neck and shoulders’.
· [The mother] asked, ‘Where don’t you like it?’
· [F] pointed to her vagina and bottom.”
Paragraph 7
“[F] continued to say, ‘If I need to wee, he puts his finger in, if some spills, he puts his mouth over it’.”
Paragraph 8
“[F] said, ‘It always starts from here first, then down here’, putting her hand in her mother’s pants.
Paragraph 9
“[F] said:
· ‘I trick Daddy I’m sleeping’.
· ‘Daddy likes rubs’.
· ‘I do whatever he wants’.
· ‘Some days we have off’.
Paragraph 10
“[F] said, ‘Daddy says, ‘Can you rub my back?’”
Paragraph 11
“[The mother] asked, ‘Do you like rubbing Daddy?’”
Paragraph 12
“[F] replied:
·‘On his shoulders and arms, I don’t like bottom and penis’.
·‘Sometimes wee on my hand’.
·‘I have a bath with Dad, [C] is asleep’.
Paragraph 13
“I said, ‘You don’t have to touch Daddy’s penis’.”
Paragraph 14
“[F] replied, ‘He wants me to’.”
On 26 July 2005 Dr H saw the children. Dr H’s progress notes for those appointments on that day, also annexed to the affidavit of Dr AM filed on 14 September 2007, indicate that F made a large number of concerning disclosures similar in terms to those alleged by the mother in her affidavit. Dr H reports F as reporting sexual abuse by her father in these terms:-
79.1.“father rubbing vagina”
79.2.“inserting his finger into vagina’
79.3.“asking her to rub penis”
79.4.“has sticky stuff on his leg next to penis all day”
After recording a number of the mother’s allegations as to what F had told her, Dr H records the results of her examination as follows:-
80.1.“vagina not especially red”
80.2.“no evidence of fresh trauma”
80.3.“but introitus = gaping more than I would normally expect”
80.4.“could easily be consistent with finger penetration that could have been ongoing for a few months”
Dr H then reported on F’s behaviour during that examination in these terms:-
“almost disinhibited in spreading her legs and allowing me to look at vagina
telling her story - writhing in chair, uncomfortable about telling but at the same time almost oversexualised in her behaviour and somewhat enjoying the attention to her genitals”
The summary of Dr H recorded in her progress notes was as follows:-
“behaviour and physical findings consistent with sexual abuse”
Dr H in her notes then records what she describes as a “post script” in these terms:-
“next patient reports that [F], before coming in to see me has walked up to her 3 year old daughter and kissed her on the mouth. Her sister came up as well embracing both girls and kissing the other patient child on the cheek.”
when other patients in the waiting room say ‘Not on the mouth, dear. [F] asks ‘why?’= consistent with inappropriate behaviour”
Dr H’s progress notes of that day in relation to C detail only the allegations of the mother.
Ms E, a case worker with the Domestic Violence Service said in her affidavit filed 2 November 2006 that she had heard similar disclosures from F on 26 July 2005. At paragraph 2 thereof she records:-
“2.I was present on 26 July 2005 when [F] made a number of statements in relation to her father. She said, ‘Daddy asks me to rub his penis’, ‘I don’t like grabbing his penis because I think wees will come out’, ‘Daddy sometimes rubs my vagina’, and ‘Daddy said don’t tell mummy’. On 26 July I notified the Child Protection Unit that these statements had been made by [F].”
F was seen by Consultant Paediatrician, Dr AM on 10 August 2005 and 24 August 2005. Her conclusions after her examination of F are annexed to her affidavit filed on 14 September 2007 and contained in her report dated 27 September 2005 to Detective Senior Constable ON. Dr AM records her findings in the following terms:-
“Examination Findings
[F] was examined using the Zeiss Colposcope in the Colposcopy Clinic at the Royal Hobart Hospital on 24.08.2005. Examination of her genitalia revealed she was pre-pubertal and there was no significant abnormality. On retraction of her labia this revealed a cylindrical hymen with a small tag present at 9 o’clock which could possibly be the result of a torn septum. The remainder of the hymen appears normal. A septum is a common congenital abnormality seen in young girls, it may have ruptured spontaneously or alternatively may have ruptured as a result of trauma.
Summary of Findings and Conclusion
Hence the findings on this child neither supports nor refutes the allegation of sexual abuse by vaginal penetration.”
The evidence of the mother’s husband, Mr B, on the topic is brief. It is contained in his affidavit filed on 11 September 2007. He records as follows:-
Paragraph 10
“I recall that [C] would do strange kisses to me, sucking on my lip and tongue. I felt that this was rather peculiar.”
Paragraph 11
“During the course of my stay, [F] said to me that she has games with her father in which he tickles her ‘ginny’. I asked her to show where she meant and she indicated her vagina.”
However, I have earlier indicated my view of the veracity of the evidence of Mr B. I am not satisfied that I can rely upon it. I thus have no regard to this evidence of Mr B in framing my findings.
F was interviewed by the police on two occasions, the first being on 28 July 2005. A video tape of that interview is Exhibit 1. The transcript of that interview, agreed by the parties as being accurate, is Annexure “B” to the affidavit of the mother filed on 19 September 2007. On that occasion F made a number of disclosures to Detective Senior Constable ON. Relevant extracts of that interview and transcript are as follows:-
Page 1
“Q[F], do you know what I want to talk to you about today?
AWhat?
QI want to talk to you about the special games that Daddy likes you to play that you told someone that you don’t like playing very much
AMm.
QBecause, and I know ……..
AOh that’s the tickle scratchies.
QYou don’t like the tickle scratchies?
A(No audible reply).
QNo, so what I would like you ……
AOh sometimes I do like ‘em but in some places I don’t, I don’t like him to do
Page 2
QWhich places don’t you like him to do?
AMy bottom and my vagina.
QYour bottom and your vagina, can you tell me what happens?
AI don’t like it cos he’s my best friend and I don’t want any wee to come out.
QYou don’t want any wee to come out? Well you tell me a bit more about it?
AI, I try to hold it in.
QYeah, where are you when this happens?
AAt Dad’s house.
QWhereabouts in Dad’s house?
AAt the bedroom.
QYour bedroom?
AWe’re in, all in the same bedroom.
QOh are you? And how many beds are there in your bedroom?
AThree.
QAnd whose beds are they?
ADads, Mum …..
QMm.
Aand mine and [C’s].
QOkay so the big one is for Dad and Mum is it?
ANo, it’s only for one.
QOh.
AThen where’s Mum sleep? At her house.
QOkay, yeah, okay, so there’s three beds in the bedroom at Daddy’s?
AYep.
QAnd which one of those beds do the tickle games happen in?
AThe big bed and the little bed where I sleep.
QSo do the, they happen in the big bed and the little bed?
Aand I, and I don’t want, and I don’t want wee to come out of his bottom into my hand.
Page 3
……
QOkay, can you tell me about the tickle games?
AUm, that’s all of the tickle games.
……
Page 4
QThat’s exactly right, mm. Um do you know how many times you’ve played the tickle games?
AEvery day.
QEvery day?
AExcept one.
QOkay, so is it every day at you’re at Daddy’s house or?
AAh not every day.
QMm
AEveryday I’m there
QOkay, and do they happen in the day time or the night time?
AOn that (inaudible) . happens in the night time
QIn the night time? Okay.
AAnd I don’t like tickle scratchies on Dad’s bottom.
QDo you, do you, does, does, do you give Daddy tickle scratchies?
AAhh no just rubs
QWhereabouts do you give him the rubs?
AOh everywhere that I don’t like.
QWhich bits don’t you like?
AOn the bottom.
QThe bottom, okay.
AAnd the vagina.
Page 5
QOkay, so who’s bottom? Yours or Daddy’s?
ADad’s.
QDaddy’s bottom, so do you give him tickle scratchies on his bottom?
AYep, he loves it on his bottom.
QWhat, what, how do you know he loves it?
ABecause he doesn’t say no I don’t like that.
QOh okay.
AAnd I don’t like it all, doing it.
QNo, tell me what else happens when he gives you the tickle rubs on your vagina?
A(No audible reply).
QWhat happens if some wee comes out when you don’t want it to?
AWell Dad has to always clean it off his hands.
QHow does he clean it off his hands?
APut it in the toilet and then go and wash his hands.
QWhat does he put in the toilet?
AThe wee.
QOh okay and ….
AAnd he has to clean the whole bed and we have to sleep in, and he has to sleep in our bed.
QOkay so the wee comes out in the bed does it?
AMm and some and some of it in, in, in, in ah ……
QYou can’t think of the word? Oh and is it Daddy’s wee or your wee?
AIn his hand
QYeah it’s in his hand but is it Daddy’s wee or your wee?
AMy wee.
QOkay, what makes the wee come out when you don’t want it to?
AWell sometimes you just have to wee.
QMm.
AWhen you don’t want to.
Page 6
QMm.
AYou have to.
QYeah sometimes you do, don’t you? You just have to.
AMm.
QYeah.
AYou have to when you don’t want to.
QAhem, do you know what a penis is?
AYes.
QWould you tell me what a penis is?
AIt’s something where wees come out of.
QDo girls have them?
ANo.
QWho has them?
ABoys.
QOkay, have you seen Daddy’s penis?
AYes.
QCan you tell me what it looks like?
AIt looks like this.
QOh like that? What else about it? Anything else about it?
AIt is very um ……..
QVery what?
Avery thin.
QThin?
AWell not thin, fat.
QIs it straight or is it bent?
AFat, fat, ah straight.
QOh okay, and is it …..
ANot bent.
QNot bent?
AOnly when you move it.
Page 7
QOh okay, is it hard or soft?
ASoft.
QOkay.
AThat’s why it doesn’t move.
QOkay and what does Daddy do with his penis?
AHe does wees in it.
QAnything else?
AHe does wees in the toilet.
QYeah.
ANothing.
QNothing else? That’s good.
AThat’s all the things I want to stop.
QMm that’s what you want to stop, now tell me again which things you want to stop?
AWhy you heard.
QWell I’ve just got to make sure I’ve got it right, you said you don’t like it when Daddy touches your, or places tickles on your vagina?
AYep.
QOkay, and um …..
ATickle scratchies.
QYeah, tickle scratchies on your vagina, how do tickle scratchies work? Tell me about them?
AUm well they’re scratches that are tickly that’s why they’re, we call ‘em tickle scratchies.
QOkay.
ABecause they’re kind of tickly and scratchy.
QOkay and do the tickle scratchies happen on the inside or the outside of your vagina?
AUm outside.
QOkay.
AHe rubs it like this.
QOh.
AAnd he rubs over the hole so I thought wee wouldn’t come out.
Page 8
QOh.
AAnd flash on the middle of his hand.
QOkay so that looks like a very gentle rub, is that what it’s like that very gentle rub that you just showed me?
AYeah.
QOkay, and what does it feel like when he does that?
AUm, um soft.
QSoft, okay and does anything happen to your bottom that you don’t like?
AWish I could bring all of my toys like Peter Pan and Starry.
QDo you?
APeter Pan has orange hair, well not actually, green hair and Starry has ….
QWhen you stay at Daddy’s house, do you have a bath down there?
ANo and we have baths in the middle of the night.
QWho?
ADad and me.
QYou and Dad together?
A(No audible reply).
QDo you have any clothes when you have your bath?
ANo (laughs).
QThat’d be silly, wouldn’t it?
A(Laughs).
QDoes Daddy have any clothes on when he has his bath?
AWell he only has his underwear.
QDoes he have a bath with his underwear on?
A(No audible reply).
QOkay, and what happens when you and Daddy bath together in the middle of the night?
AWee comes out into my bottom.
Page 9
QInto your bottom? How does that happen?
AWell because I just, I, well sometimes he needs to go to the toilet and he does it in the bath and it floats over into my body, that’s why I know that it happens there or it wouldn’t have happened at Mummy’s place because sometimes wees come out of my bottom.
….
QIs, now is there anything on Daddy’s penis?
ANope.
QNothing on it at all?
AUn except stickiness.
QDo you know where the stickiness comes from?
AWell some of it gets, some of the poo or wee gets dry …..
QYeah.
Aand the rest of it comes out …..
QComes out of his ….
Aand wees and stickiness on some poo and some wee.
QDo you know what that sticky stuff looks like?
AWell just looks like little dots of things, of poos.
QWhat colour?
ABlack.
QOh okay.
ABut when it gets mouldy it’s brown.
QOh and how do you know it’s sticky?
ABecause I, because I, because he goes to the toilet and, and I know it’s sticky because it sticks onto him.
QOkay ……
AAnd the wee well there’s lots of wee everywhere on his, on his, penis.
QWhen does he get the wee on his penis?
AThat’s when he goes to the toilet.
QOh silly me, and have you ever touched it?
AYep.
QTell me about what ….
ATo rub it.
QTo rub it? Why did you rub it?
ABecause Dad said.
QWhat did he say to you?
AAnd I don’t like it.
QYou don’t like it?
AThat’s why I came here to stop it.
Page 12
………
QYeah, mm, so how many times do you reckon you’ve touched Daddy’s penis and rubbed it when he’s wanted you to?
AOne time.
QOnly one time? And where were you then?
AAh at his house.
QYeah, whereabouts at his house?
AWell in, in the bedroom.
QMm.
AAnd I don’t want it to happen again.
QNo, I’m not going to let it happen again.
AAnd I didn’t know, know when I ah could I please rub your back, because I only said back and not those two words, I didn’t, I didn’t like, I didn’t even know he was gunna ask to, to rub there.”
The police recovered a bed sheet from F’s bed and submitted it for forensic analysis which was undertaken on 29 July 2005. Exhibit 15 is a copy of the Examination Notes in relation to the bed sheet prepared by Forensic Scientist Mr O. Semen stains were found as indicated on that Exhibit and as detailed in Item 4 on page 2 of the Forensic Biology Examination Summary Report which is Exhibit 14. That semen was submitted for DNA profiling and determined to be that of the father. (Exhibit 13).
In his evidence to the Court, Mr O said:-
90.1.that if, as the father alleged, he had masturbated in the bathroom, washed his hands and then made F’s bed, it would not provide a satisfactory explanation of the semen staining on F’s bed sheet because:-
·the stain was a round shape
·it was likely as a result of direct contact
·it was likely that it dripped on to the sheet, including from the father’s hand
·or that it came off something in contact with the sheet
·that the stain would likely be smeared in the action of making the bed
·that in the action of making the bed, multiple areas of staining were likely
90.2.that the staining could also possibly be explained if the father had ejaculated towards the sheet or some semen had dripped from a towel or the towel and semen had made contact with the sheet. However, in his evidence the father denied that he had ever ejaculated on the children’s bed sheets.
C was interviewed by the police on 1 August 2005. Exhibit 3 is a video tape of that interview of C by the police. There is no transcript of that interview. However, in that interview C makes no disclosures of sexual abuse of her by her father.
Also, on 1 August 2005 the father was interviewed by police. A video tape of that interview and the transcript of same is Exhibit 4. He denied the allegations that he had sexually assaulted his daughters.
Of concern is a statement made by the father in his interview with police on 1 August 2005 (Exhibit 4). At pages 22 and 23 of the transcript, he responds to an allegation and a question which had never been put to him:-
Page 22
…..
QOkay, I’ll move on to the next date. On the tenth of July, this year, [F] made to the, a comment to her Mother ‘Daddy always sleeps with us, he gives me tickle scratches on my back, arms, bottom and ginny’.
ARight.
QWhat can you say about that?
AOh I can say that that’s disgusting, I, I’ve never ever kissed their vagina, that’s ……
QNever kissed it?
ANo, of course not.
Page 23
QBut you just said you’ve never kissed it.
AThat’s what I just said, I’ve never kissed their vagina.
QNo but I said her comment was ‘he gives me tickle scratchies on my back, arms, bottom and ginny’.
AOh tickle scratchies, oh okay sorry, um yeah I certainly don’t tickle scratch her vagina. Sorry I was told that there were allegations made that, that I’d kissed their vagina, that’s what my lawyer advised me on the Friday.
….
The father’s lawyer at the time was a Mr Michael Trezise. He was called to give evidence. Exhibit 8 is constituted by copies of correspondence and file notes of Mr Trezise produced on this particular topic. Whilst he reluctantly conceded in evidence that it was possible that the police officer had informed him that the father had kissed the vaginas of the two girls, it was his evidence that he had no recollection of ever being told that by police or of ever telling the father that. He certainly made no note of it.
A second interview of F by the police was conducted on 8 December 2005. An agreed transcript of the interview recorded on the video tape (Exhibit 2) is marked “B” and annexed to the mother’s affidavit filed 19 September 2007. In that interview with the police F was specifically asked whether her father had ever kissed her vagina or bottom. F firmly stated that he had never done so. That interview was conducted well after the police interview of the father.
Other relevant extracts from that interview are as follows:-
Page 1
……
QOkay, and the first thing I want to ask you is, remember how the tickle scratchies used to be nice and then turned to nasty, can you remember the first time ever they turned nasty?
AUm when he only started to do it where I don’t like.
QYeah, can you remember where you were that day?
AUm at Daddy’s house.
……
Page 6
QOkay, now, now you’ve drawn your picture, you show me where the first nasty tickle scratch happened.
AUm Daddy just reach over, Daddy just reached over to, to my bed ….
QYeah.
Aand then tickle scratched.
QSo you were in your bed and did Daddy stay in his bed or get out of it?
AWell he got out of it and laid in my bed with me for a bit and tickle scratched me and gave me a little hug and gave me a kiss and then went back into his bed.
QAnd where was [C]?
AShe was in her bed, she, she only likes tickle scratchies here.
QOh.
AHe doesn’t do ‘em to [C].
QOh good.
[OFFICER G]
QSo when Daddy tickle scratched you in your bed that first time, what did he do?
AUm tell him.
[DET SNR CON ON]
QMm?
ATell him.
QWhat did he do? Can, whereabouts did he tickle scratch you that wasn’t nice that first time?
A(No audible reply)
QDown between your legs?
ANo, vagina.
QOh your vagina, okay, and did he say anything about it?
AAnd up, and …..
QAnd up in your bottom?
AWell not in it, just on it.
Page 9
……
QAhem, okay, there you are on the bed and what’s happened?
AAnd Daddy is here, he’s just reaching over to tickle me there.
QMm, where was [C]?
AWell she, she was over here watching cos she didn’t really want to, cos she doesn’t like it.
QDid [C] know what Daddy was doing?
AHa cos she was watching.
QShe was watching was she?
AAhem, that’s [C] and um Daddy’s with me there.
QOkay and when Daddy tickle scratched you there at Nanna ah at Nanna and Grandpa’s house …..
AAhem.
Qwhereabouts did he tickle scratch you there?
AThere.
QYou’re showing me the vagina again?
AUm that’s my vagina.
Page 10
QYeah.
AAnd that’s where my vagina is.
QYep, okay can you remember what, what you were wearing when that happened?
AUm he just went under, he just went under my underpants.
Page 16
......
QOkay, and so you had the tickle scratchy, where did you have the tickle scratchy that day?
AWell um oh I already told you before.
QNo but you said he, he tickle scratched you when you were in the bed, but whereabouts did he tickle scratch you that day?
AUm everywhere.
QEverywhere? Was that one of the nice tickle scratchies or one of the not nice tickle scratchies?
AAh not nice.
Page 17
QOkay, so which part of it wasn’t nice? Where did he scratch you that wasn’t nice?
AAh I told you every time, it’s always that place.
QAny you’ve shown me your vagina and your bottom again? Is that right?
A(No audible reply).
QYeah okay, when he tickle scratch your bottom, can you explain to me how he tickle scratched your bottom?
AWell he just tickle scratches it like this, on the outside.
QOn the outside of your bottom?
AYep.
QWas that on the outside of your clothes or the inside of your clothes?
AWell um inside.
QInside your clothes, just on the outside of your bottom, and when he tickle scratched your vagina, there at [the grandparents’] house, was that on the inside of your clothes or the outside of your clothes?
AI already told you, inside.
QOkay, and when he tickle scratches your vagina, is that on the outside of your vagina or the inside?
AOutside.
QOkay, that’s good. Were there ever any times that Daddy tickle scratched the inside of your vagina?
AUh uh.
QThere weren’t?
A(No audible reply)
QWhat about the inside of your bottom?
AUh uh, never.
QOkay, can you remember telling someone something about Daddy tickle scratching your ah sorry Daddy kissing your vagina?
A(No audible reply)
QYou don’t remember telling someone about that?
AUh uh, didn’t even do that.
Page 25
…..
QOkay, so when you’ve drawn it there, you were in the bath and Daddy was outside the bath?
AAhuh.
Page 26
QAnd what happened?
AUm Daddy was, got ohh, he’s, he’s coming to tickle scratch me, that’s what happened.
QAnd did he tickle scratch you when you were in the bath?
AAhem.
QWhereabouts did he tickle scratch you in the bath?
AEverywhere, he always tickle scratches me everywhere.
QWas it a nice tickle scratchie or a not nice tickle scratchie in the bath?
ANot nice.
Page 28
QOkay, so tell me what happened when Daddy asked you to touch his penis?
AWell um I just did it because he told me to.
QYeah, can you show me how, how you touched his penis?
AWell he was laying on, on the bed …..
QYeah.
Aand he just asked me to and then, and then I just goed over there and tickled it.
QWhich, you put your hand up and show me what way you, you tick, look ah pretend that’s Daddy’s penis, pretend that’s Daddy’s penis ….
AAhem.
Qand you show me what way you tickled it.
AAnd, no pretend this is the penis coming down, pretend this is the penis coming down …..
Qright.
Aand this is rest of it and I tickled just that part and not the penis.
QJust around it but not the penis?
AAhuh.
QOkay and so then what did Daddy do?
AWell um, he didn’t do anything because um he asked me to so, it didn’t even matter.
QOkay, can you tell me about Daddy’s penis, what it looks like?
AWell um, there’s just this round part going around for a bit and then gets smaller, smaller, smaller and then there’s this penis and that’s where the poops and stuff come out of.
QAnd um okay, what was Daddy wearing when he wanted you to touch his penis?
AUm t-shirt.
QAnything else?
AAnd um shorts, black ones.
QBlack shorts? So how did you touch his penis if he had shorts on?
AWell um he pulled them down so I could.
Page 29
QOkay, did Daddy wear any underpants under his shorts?
AUm no.
QNo underpants under them?
A(No audible reply)
QWas it day time or night time?
AUm night time.
[OFFICER G]
QNight? Did you ever seen, did you ever see anything come out of Daddy’s penis?
AUm no.
QNo? Okay.
AHey last time I remember that I was telling you about this …..
QMm.
ASticky wee that kind of sticks.
[DET SNR CON ON]
QYeah, yeah.
[OFFICER G]
QYep.
[DET SNR CON ON]
QWhen did that come out of Daddy’s penis?
AI didn’t really want to do it because it was like that but I didn’t want to hurt his feelings so I just did it.
QYeah, I know, I know you didn’t want to but we need to know about it, so what made this sticky wee stuff come out of his penis?
ANo not come out …..
QOh.
Ait was just stick on.
QOh was it?
AIt was sticking on.
Page 30
QOh and you felt it when you touched his penis? Is that what you’re telling me?
AYeah.
QWas that, was that the same time that, how many times has it happened when you’ve, when Daddy’s asked you to touch his penis? You told us about one time.
AOnly one time.
Court appointed Single Expert, Child and Adolescent Child Psychiatrist, Dr A, first saw the children on 9 December 2005. The first of four reports prepared by Dr A in this matter is dated 7 February 2006 (shown on the front sheet to the report as 14 March 2006). At page 15 of his report, Dr A records:-
7th paragraph
“I asked the girls who lives at home with them and [F] told me that her mother and [C] lived there. I asked her why they were here and she ignored the question at first. [F] then went on to say that they had come to see their father because of what he did. She explained that he ‘tickle scratched’ her where he was not supposed to, on her vagina and bottom. She pointed to the appropriate areas to indicate where they were.”
8th paragraph
“[F] explained the tickle scratchy game. She said that [C] didn’t like it so she told her father not to. She didn’t want to tell him to stop because she thought it might hurt his feelings. She indicated that the tickle scratching was done with his hands.”
10th paragraph
“[F] told me that she had talked to [Det Snr Con ON] (from Tasmania Police) who was her special person to stop it happening. I asked [F] whether what she had told [Det Snr Con ON] was the truth or make believe and she informed me that everything she told [Det Snr Con ON] was true. She appeared to want me to stop asking her questions about this issue.”
Further, at page 16:-
3rd paragraph
“I asked [F] about seeing her father with me that afternoon. She replied that it would be, ‘great because I love seeing my Dad’. She explained that she had not seen him for a long time because of the things he had done. She added that if she had not told about the game then these things would not have happened. She denied feeling angry with her father for not living with them, but said that he never did mean things when they were living together.”
4th paragraph
“[F] became quite subdued while talking about the tickle scratching game and made it clear how much she missed her father, saying it was like she had not seen him for a 100 years.”
On 25 January 2006 the police laid charges against the father of maintaining a sexual relationship with a person under the age of 17 years, namely, F.
Dr A, who is a highly experienced and widely regarded expert Child and Adolescent Psychiatrist and whose expertise was not challenged by any of the parties, formed the view in February 2006 that the evidence he had seen was highly suggestive of the father having sexually abused at least F and that thereby placed C also in a situation of risk of future abuse by the father. It is summarised by him on page 26 of his said report as follows:-
“ … [F] appears to have made consistent disclosures to her mother and a number of other professionals, including myself and the Police, about her father touching her on the ano-genital area. I believe that Police charges have been laid in relation to these offences. All of these factors suggest a high probability that [F] has been sexually abused by her father. If this is the case then I suggest that the risk of [C] also being abused at some future time by [the father] is very high.”
Ms S’s first Family Report of 17 May 2007 sheds no light on the sexual abuse allegations as the mother did not attend for her scheduled appointment.
Similarly Dr A’s second report dated 1 June 2007 (shown on the front sheet to the report as 6 June 2007) provides no additional insight into the sexual abuse allegations. Again the mother failed to attend for her scheduled appointment with him on 8 May 2007. However, he did make the following observations:-
Page 1
“ … I was overseas at that time and only replied to your email on 18/12/06, pointing out that the withdrawal of criminal charges does not mean that the children were not sexually abused. I acknowledge that it is virtually impossible to disprove such allegations but remained concerned that the evidence in the police interviews was highly suggestive. …”
Dr A did not resile from his view that there was strong evidence to suggest that F had been sexually abused by her father. At pages 4 and 5 of his report he says this:-
“Although there are some inconsistencies in [F’s] disclosures to the Police I cannot exclude the possibility that [the father] may have sexually abused [F] even if there is insufficient evidence to support criminal charges. The inconsistencies can be understood on the basis of [F’s] age and the time between the alleged events and at least the second Police interview. I am conscious of the serious ramifications of maintaining this opinion but there are equally serious consequences of dismissing the possibility that one or both girls have been sexually abused.”
Ms S had more success in interviewing the mother in the preparation of her second Family Report dated 13 July 2007. She interviewed all of the parties on 5 July 2007 and undertook some observed interaction between the father and the two children on 10 and 12 July 2007. Ms S records the following allegations made by the mother:-
Page 4, paragraph 13
“[The mother] said the ‘tickle-scratchy game’ was a bedtime practice that [F] had from when she was a toddler. However, [F] began to ask her mother to do this around her mouth and vagina. [The mother] also described that [F] had come home and said ‘he had asked her to rub his penis, she said she didn’t like doing this because sticky stuff comes out, she would have to have a bath in the night time to get it off’. [The mother] cried while recounting this. She believes these events took place while the girls were staying at the paternal grandfather’s home and also after the father rented his own place at […].”
Page 4, paragraph 16
“[The mother] says [F] has symptoms of anger and being short-tempered at times as well as over-sexualized behaviour, such as trying to put toys into [C’s] vagina. She said [C] spits on her hand and rubs her nipple at times and tries to suck people’s lips.”
In her interview with F, Ms S reports:-
Page 6, paragraph 26
“[F] age 7 ½ years said she last saw her father [Mr Cade] when she was 5 years old. She says he had to go to work in other places and they couldn’t see him, for one or two years. She also said this was because ‘he was doing bad things to me’ and that they then saw him at a ‘special centre with people who looked at daddy to see if daddy was doing the right thing’. She described this as having been ‘weird’. She remembered he brought a lolly for them ‘this really big mouse with a long tail, I saved some for later’.
[F] then did not see him for 1 year and says she felt ‘sad, I missed him so much’. She said they ‘had to see heaps of people’ about ‘what daddy was doing’. She ‘felt really bad after’ because she ‘thought we’d never see him again’.
[F] says that her mother has told her she might see her dad this Christmas and says ‘that is a long time away’. She thinks this delay is ‘because some people need to be taught again, good touches and bad touches’. She then detailed that ‘bad touches are on private parts and good touches are hugs and kisses on cheeks’. Later she said, ‘I do want to see him earlier but it is alright with me if it is at Christmas because it is near my birthday and we can have a celebration’.”
Page 6, paragraph 27
“[F] was asked what she would like the Judge to decide about her seeing her dad again. She wants ‘that he can stay with us again’. She is not scared that he would do ‘bad touching’ again. She then explained that ‘he’ll have to be an ex, even if he comes again he wont be living with us … before, they fighted heaps’.”
And a little later:-
Page 7, paragraph 31
“Lastly she was asked if she had any worries that her dad might do bad things again. [F] said ‘no, he wouldn’t want to get into trouble again’. She was asked if she felt angry with him. She said no, that she felt ‘alright’ about what her daddy had done. ….. “
It is appropriate that the father have weekly telephone communication with the children, be engaged in their schooling and remain informed as to medical and other significant issues affecting the children. Given the poor relationship between the parties, a communication book to be exchanged at handover times is indicated as is an injunction restraining each from denigrating the other to or in the presence of the children. Also, both parties should at all times be informed of the other’s telephone numbers and residential addresses.
Property
Assets, financial resources and liabilities
The parties agreed on the values of various assets, liabilities and superannuation entitlements.
They agreed the value of the property at L at $180,000.00.
The parties also owned a Toyota Corolla hatchback which the father retained on separation. The mother conceded at trial that the vehicle was of nil value.
The parties agreed that the proceeds of sale of a property at D in March 2005 was in the order of $62,000. There is, however, disagreement about the manner in which I should treat this amount which I discuss below when dealing with the alleged loans to the parties.
Superannuation
The father’s superannuation entitlements were agreed at $15,423.00.
Liabilities
They agreed that the National Australia Bank mortgage had a balance owing of $97,000.00.
HECS debts
The father has a HECS debt in the order of $13,209 and a Student Financial Supplement Loan in the order of $13,928 (Exhibit 6). The mother states that she was unaware of the Student Supplement Loan, but I accept the father’s evidence that the mother did in fact know of it and that the parties used the loan for their general living expenses when they were students.
The mother contended that she too had a HECS debt in the order of $10,000. There is no mention of it in the Financial Statement filed by her on 19 September 2007, no documentary evidence of the same was produced and the father stated that he did not know whether or not she had such a debt. However, he did admit that the mother had such a debt in the order of $10,000 during their relationship. I am satisfied that the mother is liable for a HECS debt in the sum of $10,000.
However, in my view it is appropriate to leave the parties with the individual responsibility for their respective HECS debts. Neither Exhibit 6 nor the rest of the evidence suggests that the parties are likely ever to be responsible for payment of those debts. Neither has discharged any portion of the debts since they were incurred. Neither has attained an income threshold, nor appears likely to, which will result in them becoming liable to discharge the debts or any part of them. In other words, they are contingent liabilities in respect of which the relevant contingencies are unlikely ever to arise.
Mother’s legal fees
The mother gave evidence that her legal costs to date were in the order of $75,000. However, Counsel for the mother did not indicate to me how it was that I was expected to treat the aforesaid sum for legal costs. In his address he did not factor it into any calculation as a liability.
The Full Court considered the question in Chorn and Hopkins (2004) FLC 93-204. A summary of the principles which can be identified from the decision is as follows:-
302.1.The treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge.
302.2.In determining how to exercise that discretion, regard should be had to the source of the funds.
302.3.If the funds used existed at separation and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party who has had the benefit of them.
302.4.If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties.
302.5.Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
302.6.Outstanding legal fees themselves are generally not taken into account as a liability.
302.7.If in the exercise of the discretion it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the moneys used to pay the legal fees should also be taken into account.
I am not satisfied that there is any evidence to support a contention that the mother’s liability for legal costs should be treated as a liability against the gross asset pool. In a general way, it will be appropriate for me to consider it when reviewing the provisions of Section 75(2) of the Act and as to the parties’ respective financial positions.
Alleged loans to the parties
There is some dispute about whether certain moneys were loaned or gifted to the parties.
The father states that the following loans were made to the parties:-
305.1.$5,000 from the father’s grandmother in 1999 for the purchase of L property;
305.2.$6,500 from the father’s grandmother in 2001 for the deposit on the property formerly owned at D in 2001;
305.3.$42,000 from the paternal grandfather and his wife incurred for various building expenses while the parties were building the property at L in 2004.
The net proceeds of the sale of D property, agreed by the parties as being an amount of $62,000, were, with the mother’s full knowledge and approval, paid into the father’s account. The father states that he repaid these amounts (although only $40,000 of the alleged amount of $42,000 owing to his father), an additional $5,000 which was owed to a friend Mr AG for a further loan and various other expenses, from the said proceeds of sale.
The mother stated in cross-examination that she believed the moneys from the father’s grandmother were an early inheritance and were therefore a gift to the parties.
The mother does not provide any further information about the alleged loans in her affidavit but implies that she does not agree that these liabilities and expenses were legitimate. Indeed, in her trial Affidavit filed 19 September 2007 (paragraph 5(g)) and in cross-examination at trial the mother stated that she believes that the father and the paternal grandfather concocted the details of the alleged loans from the paternal grandfather.
I accept the father’s version of events which are corroborated by his father. The evidence of neither on this topic was challenged in cross-examination.
The mother states in her affidavit that the whole of the proceeds of the sale of D property have not been accounted for by the father. I am satisfied that they have been to the extent of $56,500 as follows:-
310.1.Father’s grandmother $5,000.00
310.2.Father’s grandmother $6,500.00
310.3.Father’s father $40,000.00
310.4.Mr AG $5,000.00
$56,500.00
I am further satisfied that there is still an amount due and owing to the father’s father in the sum of $2,000. The father can bear responsibility for that from the balance of the $62,000 received by him on the sale of D property.
The father also produced accounts for outstanding debts due and owing to VH Excavations in the sum of $2,327.00 and J Electrical in the sum of $900.00 (Exhibit 7). I accept that they are outstanding liabilities legitimately incurred in relation to the L property. Again, the father can pay those from the balance of the D property proceeds. That then fully accounts for the D property proceeds.
The parties agree that there are rates and taxes due and outstanding on the L property in the sum of $3,353. However, the mother admitted that she had a tenant in the property since late December 2007 and that the tenant was still in the property at the date of trial. That tenant had been paying $170 per week. The mother alleged that he paid that amount only for a period of some 5 weeks. However, I do not accept her evidence in that regard and am satisfied that the tenant remains and is, or at least should be, paying rent of at least $170 per week. In my view, as the mother had been receiving income from that property, she should be responsible for the rates incurred in respect of same.
Thus, a summary of the net assets, financial resources and liabilities of the parties is as follows:-
314.1.Total gross assets:-
L property$180,000.00
314.2.Total of father’s superannuation $15,423.00
Sub-total $195,423.00
Less liabilities
314.3.L property mortgage $97,000.00 $97,000.00
Net asset pool $98,423.00
Contributions
At the commencement of cohabitation, neither party owned any assets. Both parties were working part-time and studying.
The mother worked full time in New Zealand for six months before going on a two month backpacking holiday with the father. The mother states that she paid the father’s return airfare and a majority of the spending money used on this holiday.
The mother received an inheritance of $6,000 in 1996 which she states was used to purchase a computer and a car for the parties and provide a bond on their rental accommodation.
The parties both studied and received benefits and the father received a New Start Allowance during periods of unemployment until the father commenced working full time for a travel company in November 2002. This was supplemented by the mother’s work in a café in 1997 and a small amount of paid work as a child carer in 2002.
On the birth of F in December 1999, the mother attended to home duties, later caring for C too. The father contributed to the care of the children but the mother made the greater contribution in the homemaker and parenting roles.
At the end of 2003, the father reduced his working hours with the travel company to three days per week.
In 2004 the parties began to build the house on the property at L. The parties also commenced renovating the property at D. Both parties made significant contributions to the building and renovations in terms of administration, organisation and physical labour. The parties engaged the building services of the mother’s now husband Mr B in building the property at L.
The mother contends that the father’s drug use reduced his capacity to contribute directly and indirectly to the acquisition, conservation and improvement of the parties’ property and his capacity to care for the children. I do not accept her evidence.
Post separation, the mother has had the almost total care of the children. The father pays a small amount in child support.
Conclusion on contributions
I am satisfied that the parties’ contributions were essentially equal during their relationship but that subsequent to separation the mother’s contribution has been greater in terms of her almost sole care of the children.
I am satisfied that an appropriate recognition of the parties’ overall contributions is achieved by a 55 / 45 distribution in favour of the mother.
Section 75(2) factors
I now turn, as I am obliged to do by Section 79(4)(e), to the factors enumerated in Section 75(2).
(a)the age and state of health of each of the parties;
Both parties are young and are of good health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The father presently enjoys a superior capacity for gainful employment than the mother. The father can earn more than he does.
The mother’s income earning capacity is limited by the fact that she has been the full time caregiver of the children for the last 8 years and currently has an infant (Z) in her care. She is pursuing tertiary study.
The mother is liable for costs in the order of $75,000. The father too has paid and is liable to pay costs.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The mother will continue to have the predominant care of the children, and her responsibilities in this regard will probably continue for at least another 11 years as C is only 7 years of age.
(d)commitments of each of the parties that are necessary to enable the party to support:-
(i)himself or herself; or
(ii)a child or another person that the party has a duty to maintain;
and
(e)the responsibilities of either party to support any other person
The mother gave birth to A, her child with her current husband, earlier this year. The mother therefore has an obligation to support this child in addition to her commitment to supporting F and C.
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:-
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia
and the rate of any such pension, allowance or benefit being paid to either party;
The mother receives some Federal Government benefits in the form of family and parenting payments. The mother identifies this amount in her Financial Statement to be approximately $200 per week.
The father has a modest superannuation entitlement of $15,423.
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
There are no matters of relevance which require my consideration pursuant to these sub-sections.
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The parties cohabited for some 10 years. The mother has been out of the work force for approximately 9 years, since before the birth of F.
(l)the need to protect a party who wishes to continue that party’s role as a parent;
As discussed above, the mother will continue in the role of caring for the children.
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
The mother lives with her husband Mr B whom she says in her Financial Statement earns some $1,000 per week. He contributes to the joint expenses of himself, the mother and the children.
(n)the terms of any order made or proposed to be made under section 79 in relation to:-
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;
No further matters of relevance emerge for my consideration under this sub-section.
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The father pays a modest amount to the mother by way of child support. The father discloses in his Financial Statement that he pays $39.51 per week in child support to the mother. However, in her Financial Statement the mother indicates that while a sum of $153.25 per month is due to be paid by the father, she only receives approximately $23.27 per month. The evidence at trial was that at that time he was paying $47 per month but since recent amendments to the Child Support Assessment Act, he is now paying $33 per month. On all levels that amounts to a pittance, representing approximately $3.80 per child per week.
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
and
(p)the terms of any financial agreement that is binding on the parties.
There are no additional matters of relevance.
Conclusion
I am satisfied that analysis of the aforesaid Section 75(2) factors prompts a further adjustment in favour of the mother in the order of 15%. This arises from her ongoing significant role in the care of the children for many years to come in circumstances where she receives a negligible amount of child support from the father. He has the capacity to work additional days and hours with the travel company and thereby earn more. That would then reflect in a greater child support payment to the mother. He has chosen not to. The property pool ought therefore be divided between the parties 70 / 30 in favour of the mother.
Just and equitable
It remains for me to consider whether or not the Orders I propose in relation to the property settlement issue between the parties are just and equitable (Section 79(2) of the Act).
The total net pool of assets and financial resources available for distribution between the parties is represented by a figure of $98,423 (paragraph 314). If, as I have determined, the mother is to receive 70% of that pool, then she would be entitled to assets or payment in an amount of approximately $69,000. The father would receive a settlement to the value of approximately $29,500.
The L property has an agreed value of $180,000 and the mortgage thereon has been agreed at $97,000. Thus the equity in the L property is in the order of $83,000. A payment would therefore be due by the mother to the father of $14,000 if she wished to retain the L property. I do not know if she wishes to as her focus clearly has been upon a move to New South Wales. The father has offered to the mother the use and occupation of the L property for 12 months. I will thus give her the option to purchase same at the end of that 12 months or otherwise order its sale. Proceeds would then be divided 70 / 30 in favour of the mother after taking account of the father’s superannuation benefits.
The L property is a property familiar to the mother, the children and to Mr B. The mother has in many senses effectively managed the property during her travels between New South Wales and Tasmania. Aside from the need to attend to the mortgage payments and rates she will effectively be debt free (her HECS debt not being one for which I believe she will ever be liable).
For his part, the father will be debt free, again discounting his contingent liability for HECS debts and he will have an entitlement to $14,000 from the mother or 30% of the net proceeds of sale after the appropriate adjustment to take account of his superannuation benefits. That appropriate adjustment would be to allow for a further sum of $10,800 to the mother representing her 70% entitlement to his superannuation benefits of $15,423. To demonstrate, if the L property on sale netted $83,000 as calculated above:-
347.1.70% to the mother $58,100.00
347.2.70% of the father’s superannuation $10,800.00
$68,900.00
say $69,000.00
That figure of $69,000 is the amount due to the mother on the above calculations. That would leave the father with $14,000 of the net proceeds and he would retain his superannuation entitlements of $15,423.
The father’s proposal that the mother, Mr B and the children occupy the L property for a period of 12 months will afford to the mother and Mr B the opportunity to accumulate or borrow the funds necessary to purchase the father’s interest in the former matrimonial home property for a figure of $14,000.
I am satisfied that this outcome represents a just and equitable one between the parties.
I certify that the preceding three hundred and forty nine paragraphs (349) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.
Associate:
Date: 31 October 2008
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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Statutory Construction
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Duty of Care
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Negligence
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