Payne & Payne
[2009] FamCAFC 13
•5 February 2009
FAMILY COURT OF AUSTRALIA
| PAYNE & PAYNE | [2009] FamCAFC 13 |
| FAMILY LAW – PARENTING – APPEAL FROM FAMILY COURT – Where orders were made providing that the children live with the mother and that the mother have sole parental responsibility – Where orders were made that the father spend supervised time with the children one weekend each four weeks – Where the time spent with the children was conditional and required compliance with a medical treatment regime – Father had a history of mental ill health – History of family violence - Physical safety and emotional wellbeing of children whilst in the fathers care a concern – Appellant submitted that there was bias against him by the expert and the Independent Children’s Lawyer – Appellant submitted that the trial Judge discriminated against him because of his mental health issues – Appellant submitted that the orders were impractical FAMILY LAW – PARENTING – Appeal against orders that the children live with the mother and that she have sole parental responsibility dismissed – Appeal against orders made in relation to the fathers time with the children allowed in part and varied – Variation of parenting order giving the father other times for telephone contact with the children on special occasions FAMILY LAW – PROPERTY – APPEAL FROM FAMILY COURT – Where the orders made provided that the parties’ net assets be divided between them as to 62.5 per cent to the wife and 37.5 per cent to the husband – Where the appellant submitted that his hobby being gambling should not have been taken into account as an add back – Where the appellant submitted that a criminal compensation payment made in favour of the wife should have been taken into account – Where the appellant submitted that money received for Workers Compensation during the marriage should have been returned to him – Absence of evidence before trial Judge about matters complained of in the appeal FAMILY LAW – PROPERTY – Dismissed COSTS – Appellant to pay the reserve costs of respondent from directions hearings in relation to the appeal – Costs as assessed – Appellant to pay the costs of the Independent Children’s Lawyer – Costs fixed |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| AMS v AIF (1999) FLC 92-852 Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 Bass & Bass (2008) FLC 93-366 Chorn & Hopkins (2004) FLC 93-204 De Winter v De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
| APPELLANT: | MR PAYNE |
| RESPONDENT: | MRS PAYNE |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
| FILE NUMBER: | SYF | 4343 | of | 2003 |
| APPEAL NUMBER: | EA | 79 | of | 2007 |
| EA | 96 | of | 2008 |
| DATE DELIVERED: | 5 February 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Boland & Dessau JJ |
| HEARING DATE: | 2 December 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 May 2007 & 27 May 2008 |
| LOWER COURT MNC: | [2007] FamCA 605 [2008] FamCA 694 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | MCW Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
Orders
That the husband’s appeal against the property orders made by the Honourable Justice Le Poer Trench on 29 May 2007 is dismissed.
That the husband’s appeal against Orders 1, 2 and 3 of the parenting orders made by the Honourable Justice Le Poer Trench on 23 May 2007 is dismissed.
That the appeal against the parenting orders of the Honourable Justice Le Poer Trench made 27 May 2008 is allowed in part.
That Order 8 of the parenting orders made by the Honourable Justice Le Poer Trench on 27 May 2008 be varied by the following addition:
(c)on Father’s Day if the children are not to spend time with the father pursuant to Order 1 above, between 6.30 pm and 7.00 pm;
(d)on each of the children’s birthdays if they are not to spend time with the father pursuant to Order 1 above, or by reason of the mother’s election pursuant to Order 11, between 6.30 pm and 7.00 pm;
(e)on Christmas Day when the children are not to spend time with the father pursuant to Order 1 above, or at the mother’s election in accordance with Order 11, between 6.30 pm and 7.00 pm.
The husband pay the reserve costs of the wife of and incidental to the directions hearings of 25 July 2007, 22 November 2007, 17 December 2007, 28 May 2008 and 3 October 2008 as agreed and failing agreement as assessed pursuant to Chapter 19 of the Family Law Rules, 2004.
The husband pay the costs of the Independent Children’s Lawyer fixed in the sum of $2,200.00.
IT IS NOTED that publication of this judgment under the pseudonym Payne & Payne is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 79 of 2007
EA96 of 2008
File Number: SYF 4343 of 2003
| MR PAYNE |
Appellant
And
| MRS PAYNE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from final parenting and property orders made by Le Poer Trench J. The majority of the parenting orders were first made on an interim basis on 23 May 2007 and final orders were made on 27 May 2008. The property orders were made on 29 May 2007. The reasons for judgment in relation to the parenting orders of 23 May 2007 and property orders were delivered on 29 May 2007. The reasons for judgment in respect of the final parenting orders were delivered on 27 May 2008.
We will describe the 2007 orders and judgment as the first judgment and those in 2008 as the second. The final parenting orders provided for the parties’ two children, aged respectively 13 and 10 years at the date of the hearing, to spend time with the husband one weekend each four weeks. The time was to be supervised and was conditional on the husband being compliant with a medical treatment regime. The first orders made by the trial Judge provided for the children to live with the mother and for her to have sole parental responsibility for them. The orders made in the property proceedings provided for the parties’ net assets, which the trial Judge found to have a value of $567,265.00, to be divided between them as to 62.5 per cent (or $354,541.00) to the wife and 37.5 per cent (or $212,724.00) to the husband.
The husband was represented by a barrister at the first proceedings and appeared for himself in 2008.
The husband appeared in person and has acted for himself throughout the appeal proceedings.
There have been numerous directions hearings and orders occasioned by the husband’s failure to comply with directions and applications filed by him.
The husband filed an application in relation to the transcript of the proceedings. At the outset we considered this application, which was opposed by the respondent and also the Independent Children’s Lawyer who emphasised their concern that the hearing of the appeal not be delayed. Ultimately, the husband explained that he was content to argue his appeal without a transcript although he might seek an opportunity to ask for parts of the transcript if that became necessary during the oral argument.
Counsel for the wife emphasised that there appeared on the face of the grounds of appeal no challenge to the findings of fact by the trial Judge. The husband referred to various matters in relation to the property judgment but none of these indicated to us a need for the transcript.
Many preliminary issues including the transcript had been previously canvassed in the numerous directions hearings before Boland J. Although the husband appears for himself and has a long history of mental illness which became apparent in 2003, it seemed to us that the arrangements he accepted about the transcript were appropriate in the circumstances. The Independent Children’s Lawyer submitted that there was no need for a transcript in view of the arguments raised by the husband. At the conclusion of his submissions the husband made no further application.
The grounds of appeal in relation to all the orders are of considerable length. They are contained in a document marked ANNEX A to the Notice of Appeal filed 15 October 2008. It is necessary to set them out in full because in part they include the husband’s submissions:
1.The judge erred in concluding that it was appropriate that the mother have sole parenting responsibility given the evidence in the case by expert witnesses in relation to my son being likely to end up either on drugs in prison or both within a few years if he did not have a meaningful relationship with his father and his fathers discipline.
The mother openly admitted in court that because she is suffering from post traumatic stress she will never be able to work again.
2.The judge erred in exercising his discretion that it is in the children’s best interest to spend time with the father on every third weekend when in the past all be it shorter it was every second weekend.
3.The judge erred in exercising his discretion that it is in the children’s best interest to see the children for only one day having regard to the travel involved and the late time in the day changeover is to take place.
4.The judge erred in exercising his discretion that it is in the children’s best interest or reasonable and practical to require the children to spend time with the father under supervision considering the evidence given by the mother that there has never been any violence towards the children or the mother in the 23 year relationship and has discriminated against me do to suffering a depressive episode due to the marriage breakup.
5.The judge erred in exercising his discretion that it is in the children’s best interest to have only halve an hour telephone conversation with the father twice a week (or in other words 15 minutes each) when the children have had a history of speaking to him in a three way conversation for one hour on each occasion thus halving telephone contact or allowing for special occasions in the children’s social, educational or sporting lives that they may need assistance with straight away.
6.The judge has erred in exercising his discretion that it is in the children’s best interest that no orders be made to spend time with or communicate with the father on Christmas Day, Easter, Easter Sunday, the Children’s Birthday’s, the Father’s birthday, Father’s Day, any of the School Holidays and any other such special occasions.
7.The judge has erred in exercising his discretion by not awarding me the work injury compensation money’s awarded to me for a future knee replacement and the fact that I have signed an assurance to the courts that I will use this money for the operation and not use the public health system funds.
8.The judge has erred in exercising his discretion in the breakup of accepts by not using evidence available in both party’s affidavits compared to the contradicting evidence given in court as to the true assets and liability’s of both party’s, by charging the father with a family liability of $20,000.00 dollars but not taking into consideration the Mother’s family liability’s with two failed businesses pay rolled by the family.
9.The judge has erred in exercising his discretion in relation to the breakup of cash accepts even after stating in his Reasons for judgment (No. 312) that “The parties property is of modest proportion. Each party will require all of the funds which they will receive and or retain from the orders of the court to maintain basic living for themselves and the children. There income earning potential is not significant.” All the money’s awarded to me will go to solicitors with further payments due leaving me in dept another $60,000.00 dollars at nearly 50 years of age.
10.The judge has erred in exercising his discretion in accepting evidence that is hearsay, untrue and decimates against the children and I by court appointed experts.
11.My Barrister at the time did not take instructions in relation to giving evidence that may have helped the court make a more informed decision.
Parenting Orders
The husband appeals all of the orders relating to parenting. The parties’ children are a boy, born February 1995, so that he is nearly 14 years and a girl aged 11, born March 1997.
The opening paragraphs of the reasons provided by the trial Judge in the second judgment succinctly describe the issues in this case:
1.On 29 May 2007 I delivered a judgment following a five day hearing in this matter. At the conclusion of that judgment I made some interim orders and also some final orders. The interim orders related to the time that the children, [J] (who is now 13) and [E] (who is now 11), spend with their father. I here incorporate into these reasons my reasons in relation to the parenting issues delivered on 29 May 2007.
The Reasons Delivered 29 May 2007
Introduction
2.This case, like so many which the Court hears now, is a sad and difficult case. The children, [J] aged 12 and [E] aged 10, love their father very much and always have. The father loves his children very much and is desperately seeking the opportunity to have them as part of his daily life. The one matter which interferes in the father being able to share equal time in the care of the children with their mother is his history of mental ill health.
3.As the history of the parties’ relationship has unfolded it now appears that the father has suffered from depression of different types from about 1988 to current date. This depression, it seems probable, caused the breakdown of the marriage in circumstances where the illness did not enable to father to be able to identify why the mother withdrew from the marriage.
4.It is acknowledged by the mother that the father was a loving and involved father to the children until about the date of separation in mid 2003. Thereafter events of a catastrophic nature have besieged the father and robbed his children of his care and nurturing. These events, I am satisfied, stem from his depression and mental ill health.
5.At the time of the hearing the evidence from the father’s treating doctor discloses a guarded but positive view of the future for the father. His prognosis is good. He shows considerable insight into his illness and is compliant with his doctors medical advice. Unfortunately the history of the condition suffered by the father shows that there is always the possibility of decompensation to ill health.
Although the husband takes issue with what has been said about him especially in the expert evidence of a psychiatrist, Dr Robinson and he regards himself as being no threat to the children, a key element is an appreciation of the expert evidence. Otherwise the husband takes very little issue with the background facts as set out by his Honour and to that extent we will refer to them only briefly.
The husband was born in January 1958 and the wife October 1958. They began living together in 1982 and married in September 1992. They finally separated in July 2003. As already mentioned there are two children, J, born February 1995 and E, born March 1997.
The first orders made in essence provided that the children spend time with the husband on each third weekend from 10.00am on Saturday until 4.00pm on Sunday expanding after a few months to 6.00pm Friday to 4.00pm Sunday provided that their time was supervised by persons nominated in the orders or as agreed by the parties. Further, the children’s time with the husband was conditional on his compliance with order 6 which is as follows:
(6).The children’s contact periods with the father
provided for in order 4 above be conditional upon:
(a)the father attending for regular treatment and review upon Dr [G], Career Medical Officer and/or such other psychologist or psychiatrist to whom Dr [G] may refer him, at such times and at such frequency as those persons may direct; and
(b)the father continuing to take such medication as prescribed by Dr [G], or any other psychiatrist providing treatment to him; and
(c)the father providing to Dr [G] or any other psychiatrist/psychologist who may be treating him, within seven (7) days of the date of this order an irrevocable authority to notify the mother and the Independent Children’s Lawyer if the father:
(i) ceases to take his prescribed medication;
(ii)ceases to follow medical advice or attend for psychiatric review as may be required of him;
(iii)in his opinion, the father’s mental state is such that he is not able to properly care for the children during contact periods,
AND should the father not provide such an authority, then the children’s time with the father pursuant to order 4 above shall be suspended.
Orders (para 10) were also made that the children communicate with the husband by telephone each Wednesday evening between 6.30pm and 7.00pm and each Sunday when the children are not with him between the same time. This order was expressed to be:
PROVIDED THAT such calls are not to be longer than 30 minute’s [sic] duration. Unless and until the father is provided with the mother’s landline telephone number the mother is to cause the children to make the call to their father at the appointed time and on the appointed day.
In paragraph 13 his Honour ordered:
(13)On or after the 1 October 2007, the parties and children attend upon Dr Christine Robinson, Child and Family Psychiatrist for further assessment and update report in relation to:
(a)the progress of the children’s time with the father; and
(b)the stability of the father’s mental health and progress of his mental health treatment.
It was also ordered on a final basis that the children live with the wife and she have sole parental responsibility for them.
The second orders, made on 27 May 2008, in relation to the children were expressed under the heading “Final Children’s Orders in addition to those Final Orders made 23 May 2007”. In these orders his Honour provided that the children spend time with the husband each fourth weekend from 6.00pm Friday until 4.00pm Sunday provided that the time was supervised by nominated persons as described in the previous order. It can be seen that the main difference in the orders was that although the times were no different, the occasion was every fourth rather than third weekend.
The arrangements for organising the time with the children were changed as follows:
(3)The children’s time with the father pursuant to order (1) above be facilitated as follows:
(a)The father is to notify the mother, by email or in writing, no later than seven (7) days prior to each period of time the children are to spend with their father, of the identity of the supervisor for the upcoming period of time. In the event of the mother not previously being provided with the contact details for that supervisor the father is to provide those details.
(b)The mother is to be at liberty to contact the supervisor prior to the upcoming period of time for the children to spend with their father. In the event of the mother not being satisfied that the arrangements for supervision are satisfactory she is to notify the father of same and her reasons for so saying. This communication to be by email.
(c)The mother is to provide to each supervisor nominated from time to time her contact details so that the supervisor may be able to contact the mother should that prove necessary;
(d)Prior to any time the father spends with the children he is to ensure that a signed undertaking in the form annexed to these orders (Annexure “A”) is held by the mother (this need only be provided once and thereafter will apply to each occasion upon which the supervisor is used by the father for his time with the children) in relation to the particular supervisor which the father will have with him on that occasion;
(e)The mother will deliver the children to the supervisor and the father at McDonalds Family Restaurant, [A] at the commencement of their time with the father; and
(f)The mother will collect the children from the supervisor and the father at McDonalds Family Restaurant, [A] at the conclusion of their time with the father.
(4)The father is to confirm by email to the mother on the Thursday immediately before each period of time where he is entitled by these orders to spend time with the children whether he will be at the changeover point on the following day to collect the children. THE MOTHER IS NOT REQUIRED TO LEAVE HER RESIDENCE TO TRAVEL WITH THE CHILDREN TO THE MEETING POINT UNLESS THE FATHER HAS SO CONFIRMED PURSUANT TO THIS ORDER THAT HE WILL BE THERE TO COLLECT THE CHILDREN.
The children’s contact periods with the husband continued to be conditional upon him attending Dr [G] and various other orders were made requiring compliance. The appointment of the Independent Children’s Lawyer was extended for a further period of 12 months.
The telephone contact orders remained in place. The only difference contained in the second order is that the wife may monitor the phone calls and terminate them “… in the event of the father saying inappropriate things to the children.” (para 8)
No order was made for time on special days other than as follows:
(11)Should the father’s time with the children fall on the children’s birthdays or Christmas Eve/Christmas Day then the mother may, at her election, notify the father that the weekend time for the children to spend with him on that occasion will be moved forward or back by one weekend.
The final paragraph of the first reasons, delivered on 29 May 2007, reveal what was hoped could be achieved by these orders where his Honour said as follows:
226.The orders proposed by the Independent Children’s Lawyer were largely agreed to by the mother and not substantially opposed by the father through his counsel although I am clear the proposed orders are not those pursued by the father nor perhaps desired by the children. The orders do however, pave the way for a progression to a more extensive form of time the children can expect to spend with their father if his health continues to improve. The father also needs to show he can interact with the children without involving them further in the dispute between the parents. He will have to demonstrate that he can spend time with them and not enlist them in his cause by having them believe that the reason for the inability to spend more extensive time together is the fault of their mother. He also needs to demonstrate that he will not cause the children to feel responsible for his emotional state.
These reasons also appear at paragraph 227 in the second judgment.
In the second judgment there then followed a heading “Update Evidence Since 29 May 2007”. His Honour explained the actions of the husband at Christmas 2007 dramatically changed the possible arrangements for these children. His Honour acknowledged in paragraph 228 of the judgment that the orders had been a failure for the children and the parents:
228.… the children have only had one weekend with their father and that was in July 2007. The father attempted to have the children stay with him again on a weekend in August 2007; however, he did not give the required notice to the mother under the orders and so, when the father and his supervisor arrived at the collection point to meet with the children at the appointed time, the mother and the children were not there.
A crucial event is described by his Honour at paragraph 230:
230.At Christmas time 2007 the father sent a letter to the children and a CD. The letter was a 'goodbye' letter and on any objective view suggested a permanent departure by the father from the children's lives. The CD, which I have listened to, was a compilation of songs with a message typed on the cover, 'For the Children'. Once again, this is in the nature of a final farewell. The words in the letter paint the father as a victim and suggest he has played no part in the circumstances which gave rise to the children not being able to spend time with him.
To appreciate the significance of this evidence the husband’s letter to the children is reproduced below:
Dear [J] and [E],
I hope you have a great time for Christmas and enjoy your presents, I know it’s not much but it’s the best I can do under the circumstances.
I am sorry the situation has got to were it is now but I have asked everyone for help, your mother though her solicitor, Doctor Robinson and Alexandra Wearne without them wanting to seriously help just there weak efforts to make it look like they are helping.
I know that you will think, that any time seeing each other is better than nothing but it go’s deeper than that, I love you both to much to put you through this rubbish any more and I am also not willing to have these people continue to put any of us though there games.
The time is over for me to jump though any more of these’s women’s hoops like a dog.
I will put a box of items I have collected for you both together over the next month or so and leave it at Aunty [C]’s, when the time is Wright it will be there for you to collect sometime next year, you will know when the time is Wright.
I will always love you both with all my heart, but obviously we were not meant to be together.
Remember in your life be kind to people and think of others and how your actions maybe hurting them, don’t be selfish.
One thing I will guarantee you is we may have lost the battle but we won’t loose the war, he who laughs last laughs best.
Love always Dad
A CD cover made by husband for children said the following:
TO [J] & [E]
THIS IS A VERY SPECIAL CD
THAT I HAVE MADE ESPESHALLY
FOR YOU BOTH THE SAY BYE
PLEASE LISTEN TO THE WORDS
OF EACH SONG BECAUSE IT’S
WHAT I FEEL IN MY HEART FOR
YOU BOTH.
His Honour then described the husband’s explanation:
231.In his submissions to me, the father said he sent the letter because he was considering taking a job in Western Australia or overseas; in any event, in a location which was a long way from New South Wales, which would take him away from Sydney for a lengthy period of time. If that was the case, I can see no reason why the father could not have told the children that in the letter. In my opinion, it was a cruel, heartless and selfish action on the part of the father to send that letter to the children. He was, I am satisfied, deliberately attempting to emotionally manipulate the children to feel sorry for him. He was effectively putting on the children's shoulders responsibility for his emotional wellbeing. He was pointedly seeking to blame their mother for the fact that he was not seeing the children. Again, this was a mischievous and largely untrue statement which I am sure was designed to interfere in the relationships between the children and their mother. The interference does nothing more than to exacerbate the circumstances the children now find themselves in. Their mother has faced a difficult task of parenting the children alone whilst the father was in gaol. To cast obstacles in the road of a harmonious relationship between the children and their mother seems to illustrate the father has no ability to understand the impact upon the children's welfare of such circumstances.
In September 2007, prior to sending these documents to the children, the husband attended a soccer match where J was playing. There was an altercation between the husband, the wife and the wife’s father at the game necessitating the police to be called.
Also of some significance was the email the husband sent on 5 May 2008 to the solicitor for the wife. In this email, after making various demands and threats the husband said:
… By the way I would like to congratulate your son and his cricket team on there [sic] successful year in the [S] cricket comp. last season.
In the appeal proceedings the husband was extremely critical of Dr Robinson’s reports and her oral evidence. However, we note that in her report dated 10 December 2007, prior to the second proceedings she recommended the commencement of unsupervised time for the children with the husband. Unsurprisingly, the Independent Children’s Lawyer sent to Dr Robinson the material referred to from the husband intended for the children. When Dr Robinson gave her oral evidence on 22 May 2008 she no longer supported the recommendation made in her report. Of this his Honour said:
233.… She said the additional material caused her to review her decision that Mr [Payne’s] mental health is stable. She was impressed with his mental health when she saw him for the preparation of the report. She was impressed that he had brought a baby turtle for the children to look at. The extra material sent to Dr Robinson raised serious concerns for her. It illustrated the father had slipped back into blaming others, was frustrated and angry. … If the father is denied time with the children then Dr Robinson is concerned about his reaction. He might become unpredictable. She is concerned that the father might be making threats to harm himself or others. Of particular concern was a letter to the mother's solicitor suggesting he had knowledge of her personal life; that is, the life of the solicitor, and that solicitor's children.
234.Dr Robinson told me she had some concerns for the physical safety of the children; however, her greater concern was for the possibility of psychological damage to the children of unsupervised time for them to spend with their father. If their father was to again become depressed and suicidal then Dr Robinson would be concerned for the physical safety of the children.
235.Asked again about the amount of time the children could spend with their father, Dr Robinson suggested “not too frequent and it should be only one occasion of overnight period per contact occasion.”
236.The mother's counsel asked Dr Robinson about the impact upon the mother of continued unsupervised time for the children with their father. I accept that the mother would be highly anxious about unsupervised time for the children with their father.
237.The mother seeks that there be no order for the children to spend time with their father. The Independent Children's Lawyer supports that position.
238.The father seeks orders as contained in his email to the Independent Children's Lawyer dated 1 May 2008. In short, he seeks alternate weekends Friday through to Sunday evening, changeovers at [A]. He seeks half school holidays, phone contact, Father's Day, birthday and special occasions contact with the children.
The question correctly raised by his Honour in the judgment was, should the children continue to see the husband. His Honour, we think also correctly, said:
241.… It is a credit to the mother that she has been able to shield the children from the conflict that she has with the father. When the father is not depressed and has a stable life, both mentally and physically, then he has a great deal to offer his children. I am satisfied he loves his children. He is proud of them. The father's stability covers areas such as employment, friendships and accommodation. All those areas, when they are in good order, indicate that the father's mental health is also in good order.
242.The mother's wellbeing is also impacted upon by the father spending time with the children. She will have to transport the children to and from the meeting spot. She receives little, if any, financial support from the father. Coming into contact with the father is a potentially stressful experience for the mother. She must reasonably be expected to be concerned on each occasion about the father's state of mind. She would be expected to be apprehensive about the possibility of some extreme behaviour on the part of the father. As against that, she has until now supported the children spending time with their father in circumstances where many mothers would have given up supporting contact in the same circumstances a long time ago.
243.On balance it seems to me that provided the mother feels there are safeguards in place to protect the children, then her anxiety levels should be reasonable and therefore the children should be able to spend time with their father.
244.I conclude that it is in the best interests of the children that they do have an opportunity to spend time with their father.
His Honour then considered in what circumstances the children should spend time with the husband and said:
248.The conclusion I must regretfully reach is that it is not possible to predict over a reasonable length of time how the father is likely to react or act in relation to the children. …
249I conclude therefore for some time into the future the children's time with their father should be supervised. The father says that supervision is not possible for a variety of reasons. He says it is too demanding upon his supervisors. He also claims the mother interferes with the supervision by talking to them too frequently and thereby disturbing them. The father also provided a proof of evidence from one of his supervisors who had appeared in Court before me, Mr [P], and another from Miss [F] who also gave evidence in the Court before me. Both blamed the mother for frustrating supervision of the father's time with the children. Both would not be available in the future. I do not accept that the father could not arrange a suitable supervisor for his time with the children if that was for one weekend in every four. The supervisor can be a person approved by the Court and/or the Independent Children's Lawyer and/or agreed to by the mother.
In considering the form of orders his Honour decided that the matter may have to be reviewed at a later time and that the frequency of the time the children should spend with the husband would be one weekend in four.
Despite the evidence of Dr Robinson that there should only be one overnight period his Honour considered what he described as the “… considerable geographical dislocation” and said:
255.… if it was only one weekend it may become almost impossible to perform and would involve the children in a considerable amount of travel over a very short period of time. It therefore seems to me that, notwithstanding the evidence of Dr Robinson, there are other matters and facts in this case which would mitigate against one overnight period and in fact I propose to make an order for the weekend to commence at 6 p.m. on Friday and conclude at 4 p.m. on Sunday.
Many of the orders were the same as those made in May the previous year with the exception of the notice provisions which now require the husband to confirm on the Thursday before that he will be there to collect the children.
In relation to telephone contact his Honour said the following:
261.I propose to continue the arrangements for the children to communicate with their father by telephone. This is also an arrangement which broke down. It broke down because the father formed the opinion that there was potentially some recording of the telephone conversations between he and his children. I would hope that the father would take a different view of that matter in the future, and irrespective of whether the conversations were being recorded or otherwise ignore that and simply enjoy the time spent talking to his children. The telephone conversations between the children and the father should be monitored by the mother at least for some time until she is confident that the content of the conversations is appropriate and that they no longer need monitoring by herself.
Other parts of the judgment will be referred to later in dealing with the submissions of the husband.
Property Orders
The order made on 29 May 2007 is as follows:
1.The parties do all things necessary to cause the sum of $273,051 to be paid to the mother from the funds held in trust for the parties in the [ES] deposit together with 62.5% of the balance which exceeds $332,741 prior to any distribution under these orders.
2.The parties do all things necessary to cause the sum of $59,690 to be paid to the father from the funds held in trust for the parties in the [ES] deposit together with 37.5% of the balance which exceeds $332,741 prior to any distribution under these orders.
3.The mother sign any document tendered to her on behalf of the father as may be necessary to transfer to him any interest she may have in his Hyundai motor vehicle.
4.The father sign any document tendered to him by or on behalf of the mother as may be necessary to transfer to her any interest he may have in the Holden Rodeo motor vehicle in her possession.
5.The father sign any documents tendered to him by or on behalf of the mother as may be necessary to transfer to the mother his interest in the jointly owned [A] […], the joint [T] […] shares and the joint [H] […] shares.
6.The mother sign any documents tendered to her by or on behalf of the father as may be necessary to transfer to the father her interest in the jointly owned [A] shares.
7.As between the parties each party otherwise retain as their absolute property all other property in their respective possession or control.
8.Each party is to cause the sum of $5,000 to be paid from their share of the funds paid to them from the [ES] deposit, to be paid to the Legal Aid Commission of NSW for the payment of costs of the Independent Children’s Lawyer, immediately upon receipt of the funds pursuant to these orders.
The essential facts in relation to the property settlement are as recounted in his Honour’s judgment as follows:
8.At the commencement of the cohabitation the father had savings of about $10,000, a motor vehicle, tools of trade, furniture and effects (this is a disputed fact which I will deal with later). The mother had furniture and effects. The father was employed as a carpenter and also played professional rugby league which earned him about $3,000 per annum. The mother was employed by the [T company]. She later obtained employment as a senior accounts administrator at [E company].
9.In 1985 the parties purchased a vacant block of land at [TM]. The purchase price was $26,950. The parties borrowed $25,000 from the State Bank. At some time later the father discharged the mortgage after winning $27,000 through betting on a horse race.
10.In about 1985 the father joined the New South Wales Police Force. In 1989 he completed a course and obtained a Builder’s Licence. In 1990 he became a partner in [B company].
11.In September 1992 the parties married and commenced to live at [L].
12.In 1993 the father made a claim for Workers Compensation arising from a motor vehicle accident. The father received somewhere between $57,000 and $60,000. It seems common ground that the money or at least part thereof was invested in a bookmaking business conducted by the father.
13.In 1995 the mother gave up her work due to pregnancy. She received $12,700 in retirement benefits. [J] was born in February 1995. In that same year the parties purchased a property at [P] for $283,000. The purchase was funded through the sale proceeds of the [TM] property of $81,000, compensation monies received by the father, monies received through an [A] investment and the investment in [B company]. The parties borrowed about $100,000.
14.In March 1997 [E] was born.
15.In September 1999 the parties sold the [P] property for $460,000. They then purchased a property at [R] […]. Thereafter renovation work was carried out on the property principally by the father. The father says he reduced the contact [sic] work he was taking on in order to work on the renovations. He undertook minor contact [sic] jobs during this time to continue to provide income. The mother says the father was largely unemployed during the period until May 2003. There is little inconsistency between the parties on this issue and I do accept the father’s evidence on this point.
…
17.In July 2002 the parties sold the [R] property for $633,000 and moved to [W] where they leased a property. In April 2003 the parties moved to [D]. In that year the father commenced full-time employment.
…
20.In August 2003 the mother rented premises for herself in [W]. On 7 September 2003 the father attended [Y] Hospital. Further mention of this event will be made at a later time. The father was discharged from hospital on or about 19 September 2003.
…
23.In November 2003 the father was admitted to [Q] Hospital where he stayed for six weeks.
…
41.On 1 February 2006 the father was admitted to [U] Hospital and remained there until 6 February. On 23 February 2006 he returned to [U] Hospital again and remained there until 28 April 2006.
42.In January 2007 the father entered into an [Z] contract. He paid $30,000. This was financed by visa card drawings of $10,000; sale of [I] shares of $6,000; long service leave proceeds of $10,500; and savings of $3,500.
…
74.The father gave oral evidence. He confirmed that he was still residing at [G]. He confirmed that he had recently entered into a contract with [Z]. That contract was with a partner and the father had acquired a fifty percent share in the business. The business sells electricity at a discount rate. In order to acquire the business the father had incurred a liability of $44,000 and had paid $34,000. The purchase price was provided from the sale of [I] shares from which he received $6,999. He also used $10,500 he received as long service leave and $10,000 which he borrowed against his visa card. He had savings of $3,500 which he contributed towards the purchase. At the time of giving his evidence he had not commenced to sell electricity.
…
81.The father admitted that he had a problem with gambling when he was playing poker machines and that was in about the year 2000. He said this problem existed for about six months. He would gamble every Friday night and he would spend $1,000 or more.
...
102.The father confirmed that when he was in [Y] Hospital in September 2003 he had told staff that he had a gambling problem with significant loss of money. He was asked what did he mean by significant? He replied $100,000 over a period of 18 months. Over 21 years I lost about $20,000. I won money before and after the period when I had a gambling problem. During the problem time he had lost about $1,000 per week over six months on poker machines.
103.The father conceded that at separation there was $15,000 in an account which he took. He said that he used it to pay rent and also to meet debts that the parties owed.
…
105.The father was asked about his assertion that he had carried out renovation on two properties. It was put to him that on occasions the mother had helped. He replied no. She helped for an hour or so to pull up some carpet. He asserted that he did all the work. He conceded that she might have helped in a minor way with the things she could do. He conceded that when he was working on renovations to the house the mother was doing housework. When the children were younger they were at day care so the father asserts that the mother was not spending all her time caring for the children. He conceded that in relation to the [R] property the mother may have helped with cleaning up.
106.It was put to the father that during the cohabitation the mother did the accounting books for his business. He replied no, however when GST came in he conceded she wrote up the books. He conceded that she helped him put together the documents that went to the accountant.
107.The mother gave oral evidence. She tendered as Exhibit M8 documents to support her claim of a debt for $30,500 to her father. I have been through exhibit M8. The marked documents in that exhibit (cheque butts, deposit slips etc) do not add up to $30,500. On my calculation they add up to $24,500 or thereabouts. In exhibit X1, a document prepared by the father’s counsel, it is noted that there is a liability for $30,000. It is noted that it falls into the category of “controversies”. No specific submission was made about this item however I understand from the document that the argument proffered is that the loan was made post separation for legal fees and general living expenses and therefore on the authority of Chorn and Hopkins it should not be added to the balance sheet.
108.I noted from the documents in exhibit M8 that almost all of the advance is said to be made for legal costs.
…
133.The mother agreed that in her affidavit she said that during the course of the time the parties lived in Sydney the father was unemployed for 23 months. She conceded that during that time he was renovating the house they owned and that he also had other jobs which brought in money.
134.The mother was asked about the funds she had borrowed from her father. She said that she had used the monies to pay lawyers and also to buy a car. Most of the money had gone to pay lawyers. She said about $2,000 was spend [sic] on general living expenses. She confirmed that she had borrowed $30,000. Of that sum, $3,000 had been provided for the [W] address.
135.The mother is currently driving the utility vehicle which the parties had at the time of separation. She said that she was told it was worth $4,500.
136.The mother was asked about the furniture in storage but said to her knowledge [sic] was not there anymore.
137.The mother conceded that the father received $60,000 in workers compensation from an injury which occurred before the marriage.
Ultimately, after a discussion of some contentious matters, his Honour found the pool of assets to be divided as follows:
241. I find that the balance sheet of the parties is as follows:
ASSETS ($) Pool “A” Balance of sale proceeds invested in ES Ltd 332,741 Money retained by the father at the date of separation 15,000 Part Payment of sale proceeds to the father 80,000 Part Payment of sale proceeds to the mother 65,000 A Capital Return (joint) 337 T shares (joint) 1,000 A shares (joint) 4,534 H shares (joint) 568 Holden Rodeo (in mother’s possession) 5,400 Father’s motor vehicle (Hyundai) 4,000 Mother’s furniture 1,000 Father’s furniture 3,000 I shares sold by the father 6,000 Long Service Leave received by Father post separation 10,500 Father’s drawing on visa card 10,000 Father’s savings $3,500 (paid) Nil Father’s paid legal costs ($3,000 paid from $15,000 of parties funds retained at separation)
Not KnownMother’s paid legal costs($59,485 paid from money borrowed from her father and also from a property distributions to the mother)
NilTotal Assets $539,080 Pool “B” Mother’s Superannuation $38,185 LIABILITIES Father · Visa Card 10,000 Mother · Liability to her father $ 6,900. Nil Total Liabilities $10,000
242.The following entry in exhibit X1 should be ignored as being de minimus:
($) Mother’s Commonwealth Bank Account 175 I shares (husband)
243.The effect is that:
($) The total of assets in Pool “A” is 539,080 The total of assets on Pool “B” is 38,185 Total Liabilities is 10,000 Net assets in Pool “A” (having deducted all of the allowed liabilities)
529,080Net assets in Pool “A” and pool “B” combined $567,265
(footnotes omitted)
The contentious matters to which reference should be made from the judgment in considering the husband’s oral submissions in the appeal and Ground 9 are as follows:
(a)The sum of $15,000 used by the husband post separation, it was conceded by the husband that he had received these monies.
The trial Judge applying the principles in Chorn & Hopkins (2004) FLC 93-204 decided that this sum should be added to the pool as the funds clearly came from the parties’ assets at separation. This was particularly so since the husband did not explain how these monies had been used.
(b) The value of the wife’s furniture.
In the absence of any independent evidence of value and the only evidence being the wife’s assertion in her financial statement that it was worth $1,000, that sum was adopted. Further, it was the wife’s evidence that she had acquired this furniture post separation so that his Honour decided to leave such sum in the pool but take into account that it had been acquired post separation.
(c) Liabilities asserted by the husband.
The husband apparently asked that various liabilities be included - storage of furniture, removalists fees, rental arrears, accountants fees and tax. As no evidence was given about when these liabilities were incurred, the trial Judge assumed that they may have been incurred post separation and did not include them in the pool of assets and liabilities. He did however, say that he would take them into account as s.75(2) factors.
(d) $30,500, a liability.
His Honour explained that he would not include legal costs in the pool as an add back. However, reference was made to the wife’s evidence that part of her property distribution from the sale proceeds from the former matrimonial home had been used to pay legal fees. While deciding that there should be no inclusion of the debt to the wife’s father in what his Honour described as a balance sheet he decided it should be taken into account in considering s.75(2) factors.
Reference was made to the wife’s superannuation, and having observed that neither party sought a splitting order, it was decided that it was appropriate that the value of the superannuation be included in the assets.
The vast part of the net assets totalling $567,265 was represented by the balance of the sale proceeds of the house which at the time of trial had been partly paid out to the husband in the sum of $80,000 and to the wife in the sum of $65,000 with the balance of $332,741 remaining.
Considering the respective contributions made by the parties his Honour observed that there had been very little cross-examination of either of the parties in relation to financial issues.
His Honour accepted that at the time of co-habitation the husband had about $10,000, a car and tools of trade together with some furniture. The wife, it was said only had furniture and otherwise had no assets or liabilities. The parties lived together for some 21 years and throughout that time both parties were either employed, concerned with care of the children, or both.
His Honour dealt directly with the issue of the husband’s gambling and referred to his evidence. The ground dealing with this issue is 8. The wife alleged that between 1998 and 2000 the husband gambled and lost moneys in the vicinity of $115,000. The husband’s case that he lost in total $20,000 through gambling over the whole of the marriage was accepted by the Judge and regarded as a waste of the parties’ assets in that sum. (para 250) It is important to understand that the trial Judge did not add this sum back into the pool but merely took it into account in relation to contribution over the whole of the marriage. (para 277)
At various times the parties received other moneys including, upon the wife ceasing work in 1987, a payment of $20,000. A significant payment occurred when the husband received compensation of about $60,000 for a work related injury in 1993. The husband used the money to set up a building company because he was concerned that the injury might cause him difficulty in his trade as a carpenter. He also obtained a Bookmaker’s Licence and operated as a bookmaker for about a year.
His Honour considered the evidence in relation to the renovation of a number of houses acquired by the parties and concluded that the husband’s evidence was to be preferred. For example, he accepted the husband’s evidence that he did 95 per cent of the work on one of the properties. It was to this property that the husband applied his inheritance of $8,000 in 1999.
The trial Judge accepted the wife’s evidence in respect of bookkeeping assistance between 1991 and 1992. While finding that her contribution was of minor significance in this respect he found that it was more important than that to which the husband was prepared to concede.
There was a dispute between the parties as to the contributions of each of them to domestic chores and the care of the children. His Honour concluded that the major part of the domestic and child care duties were performed by the wife and said “I also find that the father’s contributions in this area were substantial and not token”. (see para 272)
Apart from the matters already mentioned, the key findings in relation to the property issues made by his Honour were as follows:
(a)The wife’s contributions post separation were “significantly greater than those of the husband”. (para 274) This was conceded by the husband’s counsel. (para 278)
(b)The contributions by the parties to the date of trial was found to be 52.5 percent to the wife and 47.5 per cent to the husband, his Honour saying:
281.Weighing up the contributions I conclude that the father’s submission is correct and I find that the balance of contributions should favour the mother 52.5% to the father’s 47.5%. A matter which in my opinion is very significant in the balance is the care of the mother for the children predominantly unassisted by the father financially or through the provision of sharing in their care for the major part of the last three and a half years since the separation.
In concluding that the husband’s submissions were correct, it is important to refer to what his Honour understood the effect of that to be:
277.The father submits that his contributions should be seen as greater than the mother’s to the point of separation. In particular he emphasises the receipt of compensation in the sum of $60,000, the receipt of the inheritance, the work performed on the renovation of the properties and the father’s considerable home maker and parent contribution. As against this it is conceded the father’s losses through gambling need to be considered.
278.It was conceded by the father that the mother’s contributions post separation should be seen as greater than those of the father.
279.It was submitted that the father’s contributions should be assed [sic] as equal to those of the mother at the date of the trial or at worst the mother should be preferred slightly to the father in the assessment of contributions so that the balance is 52.5% to the mother. Again there was no reference to the separate pool and the mother’s superannuation. I can only reasonably conclude that this is a global submission intended to cover the position of the mother’s separate superannuation as well.
(c)In relation to s.75(2) considerations it is important to set out in full what his Honour took into account:
282.The father is 49 years of age and the mother 48 years of age.
283.The father has been employed as a storeman post separation for some of his time. Immediately following separation he quit his employment to care for the children in a 50/50 shared care arrangement. Thereafter for some considerable time he had no employment.
284.The father has now bought himself an income. He has acquired an interest in a contract with [Z company]. This may be about $500 per week. In order to earn this income the father has to sell contracts for power use. I am unable to be confident with his health difficulties he will be able to maintain this work. It seems to me there is the potential for significant stress associated with any sales work. I therefore have concerns that the father’s mental health may not cope well with a high stress job.
285.The mother has no employment. She has been undertaking some training however as yet this has not materialised a job. The mother is undertaking a Community Services Course at [AD]. She would also have difficulty maintaining full time employment whilst caring almost full time for the children.
286.Post separation each of the parties have received distributions of matrimonial property about which there is no dispute. There is no evidence showing when the distributions were made. The father’s Financial Statement shows that at the date of swearing (11th July 2006) he did not have any savings. The mother’s Financial Statement sworn 5th February 2007 shows no savings or assets which may have been acquired with the distributions made to her. I think it is reasonable to assume that each of the parties has used the distribution to meet legal costs and general living expenses.
287.The mother must be seen as likely to have to shoulder the majority of the care for the children into the future. It is to be hoped that the father will increase his time with the children however, it seems impractical to have an equal shared parenting arrangement unless one of the parties is prepared to move closer to the where the other lives. That, on the evidence before me seems unlikely in the near future.
288.The father has not paid any child support for the children for a considerable period of time. There is no evidence that he has ever paid child support. If his income is only to be $500 per week into the future it seems unlikely that he will be able to contribute to any meaningful extent to the financial support of the children.
289.Each parent has a health problem. The father’s health problem is canvassed extensively in this judgement. The mother has received counselling for post traumatic stress disorder. There is no evidence of the impact of this condition on the mother’s ability to work. I think it is reasonable to conclude that it could have an impact.
290.I take into account that the furniture of the wife, included in the balance sheet as $1,000 was acquired by her post separation.
291.I take into account that the father has the following debts which I did not allow to remain in the balance sheet.
($) Furniture in storage 1,187 Removalists fees 1,500 Rental arrears 1,250 Accountant’s fees 412 Tax 330
292.I take into account that the mother owes her father about $30,000 for money borrowed principally to pay legal fees. About $6,900 of this sum appears to have been used for living expenses.
293.I take into account that I have only allowed $10,000 of the father’s total liability to Visa Card of $29,458 in the balance sheet in this case. The father none the less still has the obligation to pay the total liability to Visa Card.
His Honour concluded that, including the value of the wife’s superannuation as part of the pool, an adjustment of ten per cent should be made in favour of the wife for relevant s 75(2) factors so that she would receive 62.5 per cent of the parties’ assets. His Honour determined that division to be just and equitable.
Appellate Principles
The principles governing an appeal such as this from a discretionary judgment are not in doubt.
In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J described the appropriate level of restraint that an appellate court should exercise in respect of discretionary matters as follows:
… there is a strong presumption in favour of the correctness of the decision appealed from and that that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.
It was clearly enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing his Honour’s discretionary decision consistent with these principles. If there is then, unless the result is plainly right notwithstanding an appellable error, per Gibbs J in De Winter v De Winter (1979) FLC 90-605 at 78,091, we are obliged to allow the appeal, set the orders aside and, if possible, substitute our own decision after considering the matter afresh. As was explained by Kirby J in AMS v AIF (1999) FLC 92-852 at 86-043:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
Submissions
Although we have set out the reasons relating to property and children’s issues separately, as we received the submissions about both issues in one bundle we will deal with them together.
It is convenient in this case to deal with the submissions of the Independent Children’s Lawyer first, followed by those on behalf of the wife in relation to both property and children issues and then those of the husband.
Submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer attached a very useful chronology taken from parts of the wife’s affidavit sworn 7 February 2006, the husband’s affidavit sworn 11 July 2006 and the husband’s outline of case document. We will discuss the husband’s concerns about parts of the chronology later in these reasons
The orders of the Court dating from 24 June 2005 were carefully detailed together with what the husband and wife said in their affidavits about those orders.
Otherwise in written submissions the Independent Children’s Lawyer submitted that the judgment was “thorough and reasoned”, that the orders were within his Honour’s discretion to make and that the findings contained no error.
It was asked that the appeal be dismissed and that the husband pay the costs of the Independent Children’s Lawyer fixed at $2,200.
In oral submissions Mr Sperling was asked about two matters which concerned us during the hearing of the appeal. These included the husband having time with the children on Father’s Day and other special days together with telephone contact on those occasions. In relation to Father’s Day, Mr Sperling emphasised the difficulties in relation to supervision and referred to paragraph 256 of the second judgment.
As to orders for other times we were told that the husband asked the trial Judge for these orders after the delivery of judgment and the making of the second orders and therefore his Honour was unable to make any further orders. However, we see from his Honour’s second judgment that the husband did indicate he would ask for orders relating to these occasions and this is referred to at paragraph 238 of the second judgment:
The father seeks orders as contained in his email to the Independent Children's Lawyer dated 1 May 2008. In short, he seeks alternate weekends Friday through to Sunday evening, changeovers at [A]. He seeks half school holidays, phone contact, Father's Day, birthday and special occasions contact with the children.
In relation to telephone contact on significant days, Mr Sperling submitted as follows:
In relation to the issues regarding the spending time on other occasions, joined in relation o [sic] the submissions by my friend, in relation to the telephone time, the Independent Children’s Lawyer doesn’t oppose any orders, except that any orders should not make a specific provision so that the children are required to do certain things and create an onus on them, which if it does not occur, would result in either a breach by them being brought, or a breach by the mother being brought before this Court…
Paragraph 261 of the second judgment refers to the difficulties about telephone arrangements. This included his Honour’s recording of the fact that the husband thought that his telephone conversations were being recorded.
Submissions on behalf of the wife
The assistance from Mr Jackson was somewhat limited because he had not been counsel at the trial and inevitably, in the absence of a transcript he was unable to add to anything that was not contained in the judgments. We have his written submissions which were of assistance.
We raised with Mr Jackson the question of the husband telephoning the children on special occasions and while not conceding that there was any error in the judgment, no real opposition was expressed to the orders being altered to include such an opportunity if appealable error was found. It was conceded that there was no apparent consideration in the judgment about telephone orders being made for special days.
In relation to Father’s Day, Mr Jackson submitted on instructions that an order could be made that the husband spend time with the children on Father’s Day between 9.00am and 5.00pm but with the same supervision provisions to continue.
The submissions made by counsel for the wife and the solicitor for the Independent Children’s Lawyer to some extent highlight the real problem in this case which is that the husband has been unable to arrange supervisors to comply with the orders rather than that there being some defect in the reasons or a sustainable appellate ground related to the judgment and the orders.
Submissions of the husband
As we have already mentioned, the husband appeared for himself and sadly has a long history of mental illness. However, he was able to tell us quite coherently why he was appealing each of the orders. We should add that in his oral submissions he conceded that he had behaved very badly on occasions and apologised. A particular focus of his appeal in relation to the children’s matters was the evidence of Dr Robinson. The husband was concerned that Dr Robinson had concluded that he was a “drunk” and despite the husband offering to provide her with details of a number of people he asserted were able to refute the allegations of the wife, Dr Robinson continued to be of this opinion.
The husband was also concerned about the contents of the psychiatric report prepared by Dr Robinson being an updated report after she had first seen the parties. The date of interview was 15 November 2007 and the report was signed by Dr Robinson on 10 December 2007. The following statement appears on page 9 of the report under the heading of “Assessment of [Mr Payne]”. The Doctor said:
He attacked me for saying in Court he was a drinker, violent, gambling man, demanding to know “where’s your proof?”. He could not be led into a discussion about the future, but harkened back to the past and my lack of proof for my alleged stated opinions about him. He wanted to know what was the relevance of him not being supervised and immediately answered the question by saying, and mining [sic] “so I can be slapped on the hand”.
Despite what was obviously a very difficult interview the Doctor concluded at page 10 of her report:
Mr [Payne] appeared to have a markedly improved mental state, with respect to his depression, since he was last seen. Having stability in his living circumstances, the TAFE study and the prospect of work which he is enthusiastic about are clearly very important to his mental wellbeing.
The Doctor at that time recommended that although the children continue to live with their mother they spend time with their father, unsupervised from after school Fridays to before school Mondays every three weeks and half the holidays.
The complaint that in some way Dr Robinson was biased against the husband is not made out especially when the whole report is read including her recommendations. It was of course the husband’s own actions that led to Dr Robinson changing her opinion, her evidence being described at paragraph 233 of the second judgment.
It was submitted by the husband that the Independent Children’s Lawyer has shown bias against him and discriminated against him. An example of this was the chronology, in particular where it was said that he had made a threat to kill the wife. This appears on page 10 and was said to be in about November 2004. The husband has denied that he made such threat and told us that after an investigation it was found that he had not done so. We tried to explain to the husband that there was no evidence before us of such a threat, as there was not before the trial Judge. His Honour did not conclude in his judgment that it had taken place and accordingly, it was not a matter that would be of influence in this appeal.
As counsel for the wife points out it seems that there was no submission made during the trial that Dr Robinson exhibited any bias. Nor was there any application ever made to disqualify Dr Robinson on the basis of bias or that there should be a further report prepared. Reference was made to Bass & Bass (2008) FLC 93-366 and the need for cross-examination during the proceedings if such an assertion is to be made. In view of other complaints made by the husband counsel also added that no application was made to disqualify or replace the Independent Children’s Lawyer at the trial.
In the context of the need for supervision, the husband made the allegation that he was being discriminated against because he has a treatable disease. He asserted that he had never made a threat to harm the children and is not a threat to them.
In relation to the allegation of bias by reason of the husband’s history of mental illness it must first be noted that the husband’s history and illness is not the subject of any controversy. Secondly, the reason for supervision included acceptance by his Honour of the evidence in relation to the wife’s own mental state should there not be supervision (see first judgment para 206 & and second judgment para 236).
The Judge did not conclude that the fact of the illness was a prohibitive factor. In the first judgment his Honour said:
200.The father has suffered from the considerable ill effects of his depressive illness and to that extent it has inhibited his ability/capacity to provide for the children’s physical and emotional needs. The evidence suggests that when he is well he will be able to provide for the children’s physical needs as he did when the parties practiced a shared care arrangement for the children following the separation.
201.The father’s ability to provide for the children’s emotional needs is affected by his insight into his illness and his ability to reflect upon the consequences for the children of statements he may make to them which cause them to blame their mother for their father’s circumstances. He also needs to be able to appreciate that his statements to the children have the effect of making them responsible for the father’s emotional well being rather than the reverse which is usually the hall mark of good parenting.
…
211.This is a case which involves one of the parents suffering from mental ill health. The Court has long accepted that parents with a mental ill health history can continue to expect that they will be permitted to be involved in the parenting of their children subject to adequate protection for the children and subject to it being otherwise in the children’s best interests.
212.It is historically true that this Court has made orders for parents who have a diagnosis of controlled mental ill health to participate in the care of their children. There are many examples where parents have been able to manage their conditions well and accept the ongoing supervision of their chosen medical practitioner. It is a feature of mental ill health that people who suffer in this way frequently find it difficult to comply with a medication regime for a variety of reasons. Many do not have insight into their conditions and the necessity for compliance with medication intake. Others develop this insight.
213.In this case the father is developing good insight into his illness. He appears to have an understanding of the necessity to take his medication in accord with his doctors [sic] instructions. This all bodes well for the future of the father and the children and their ability to share their lives in a meaningful way.
The order for supervision in both orders was made with the intention of protecting the children and also in the hope of them having a relationship with their father.
It is apparent that a critical problem for the husband has been the availability of supervisors. He has not seen his children other than on one occasion in late 2007.
As to the orders made for telephone contact, the husband complained that there had been a reduction of the time available to him from one hour to half an hour with no reasons for such change. There is no change in the time available to the husband. In our view, paragraph 261 of the second judgment clearly provides the reasons for the only change. First, the original arrangements had broken down because the husband formed the opinion that there was someone recording the conversations. Whether that was correct or not it was expected that the husband would talk to the children and that if necessary the wife could monitor the arrangements. Understandably the husband is particularly upset about an occasion revealed to him long after the event, connected with the problems of telephone contact that involved the parties’ son “pulling a knife on his mother” (see Trans , 2 December 2008, p.16).
Overall, the husband submitted to us that the orders made in relation to the children were not in their best interests, in particular the sole parental responsibility order. The husband submitted that the orders made in relation to the time spent with the children were not fair to him and the children and discriminated against him due to a treatable condition caused by the break up of the marriage. The husband emphasised that he had not been violent to the children and that supervision was very difficult for the children and supervisors.
The reasons for making an order for sole parental responsibility were described by his Honour under the heading Section 61DA as it appears in the first judgment commencing at paragraph 219.
Direct reference was made to the history of family violence (paragraph 209). In addition, his Honour considered whether such an order would be in the children’s best interests:
224.In this case the nature of the relationship between the parents and the current state of the father’s health lead me to the conclusion that at this time it would not be practical nor in the children’s best interests to make an order for equal shared parental responsibility. The mother is still dealing with the events of the break-in to her premises by the father. She has received counselling in relation to the trauma she suffered on that occasion. She is still clearly apprehensive about the state of the father’s health although it is also clear that she benefits from the father’s improved mental health. The mother lives in what she regards as a sanctuary from the father and that provides her with a degree of security. That security may well dissolve if the parties were required to confer for the purpose of implementing an equal shared parental responsibility order.
In relation to property issues, the husband emphasised orally the following submissions. First in relation to the workers compensation payment the complaint largely seemed to be that there was no detail placed before the Judge by his lawyers. In particular, as to why he got the moneys and how it was expected that he would spend it. As he said “I don’t believe that he had enough details on it to make a fair judgment.” While this is in part a complaint about his lawyers it can hardly be a ground for a successful appeal when it was conceded by the husband that there was no material before the Judge. It is also difficult to understand how such evidence could have made any difference. We note that it was considered by his Honour as a contribution by the husband, which was the husband’s case before the trial Judge. The husband told us that without an operation he would end up in a wheel chair and that he would no longer have the moneys for such an operation. Unfortunately there was no evidence before his Honour to this effect nor was there an application to adduce further evidence before us.
The second complaint related to what was described by the husband as a family debt of $20,000, for “a hobby”. The hobby was the husband’s gambling which he admitted in his evidence before the trial Judge. His evidence was largely accepted as opposed to that of the wife. It was not treated as a liability, merely a matter to be taken into account in considering the parties’ contributions. In addition, his Honour took into account the contributions the husband made when he won a relatively substantial amount of money.
The husband was also concerned that there was an account used by the wife, post separation described by him as “the kids account”. Unfortunately, as the husband conceded this account was never a matter of evidence before his Honour which explains why it does not appear in the judgment.
Another matter which was not before his Honour was evidence of an order for criminal compensation made on 28 September 2007 in favour of the wife. As was pointed out to the husband, that award was made after the reasons for judgment were delivered. It was submitted by the husband that in some way the fact that he is obliged to pay the sum of $9,250 by way of reimbursement of the sum paid to the wife should have been taken into account. Again, as we see it, in the absence of the matter being raised before his Honour even as a potential payment to the wife, it is not a matter for a successful ground of appeal.
Conclusions
We have largely dealt with the submissions of the husband about the property appeal in the discussion above referring to his submissions.
Overall it can be seen in relation to the property issues the trial Judge found in the husband’s favour and accepted the submissions made on his behalf. We otherwise see no error in the judgment.
His Honour followed the traditional approach in dealing with such applications and made orders which essentially conformed with submissions made to him by the husband’s then counsel. We note his Honour recorded at paragraph 295 of the first judgment that the effect of the submissions made on behalf of the husband was that the wife should retain assets and superannuation equivalent to 60 per cent of the parties’ assets. His Honour assessed the wife’s entitlement at 62.5 per cent. That assessment was based on the evidence before his Honour and appears to be just and equitable based on the facts of this case.
In relation to the children’s orders it can be seen that despite the submissions from the Independent Children’s Lawyer at trial that there should be no orders for time with the children and the warnings of Dr Robinson, the trial Judge made orders providing for time, being not just one night but two. As we have said, the fact that the orders have not been a success does not demonstrate an error, rather the great difficulty in these parties’ circumstances, so carefully described by his Honour.
Mr Jackson conceded that there was nothing in the judgment which addressed the special occasions issue and that the trial Judge had noted, in paragraph 238, the orders sought by the husband. Understandably, his Honour’s focus was principally directed to whether the husband should spend regular time with the children, or that there be no face to face time in accordance with the wife’s position. We note the wife’s counsel was unable to take us to any part of the reasons in which his Honour considered time to be spent by the husband with the children on special occasions such as his birthday and Father’s Day or telephone contact on those days. This oversight constitutes appealable error. We also consider it is appropriate that we should re-exercise the discretion. Because of geographical and supervision issues identified by the trial Judge we do not consider it is in the children’s best interests to make orders for time to be spent by the husband on the special occasions nominated by him. Having regard to the concession made on behalf of the wife about telephone contact we will make orders for telephone communication on Father’s Day, the children’s birthdays and Christmas Day in the event the children are not spending time with the husband on those days.
Costs
At the conclusion of the proceedings an application was made by counsel for the wife for costs should the appeal not succeed. We were told that the wife has unpaid legal expenses of some $70,000 and that she was not legally aided at the trial or on the appeal. Reference was made to the parties’ financial circumstances contained in paragraph 298 of the first judgment.
The Independent Children’s Lawyer asked for Legal Aid Commission of NSW’s costs to be fixed at $2,200. Reference was made to a previous order that each party should contribute the sum of $5,000 to the costs of the Independent Children’s Lawyer. (First judgment paragraph 313) We were told that this sum had not been paid.
The husband is living in poverty. He says that he has debts of some $153,900 comprised of outstanding fees to lawyers in the sum of $97,000, credit card liabilities and the moneys payable to the wife by way of criminal compensation in the sum of $9,200. At the time we heard the appeal, the husband was not employed. He was receiving a Jobstart Allowance and he was barely able to pay his rent, the shortfall being met by moneys he received from neighbours for mowing their lawn. He regularly received food vouchers from the Salvation Army.
Although it is obvious that the husband’s financial circumstances are parlous we must also consider the position of the wife. Whilst costs orders in this Court do not follow the event and it is necessary to identify matters which would attract a consideration of an order for costs, in this case, as we see it there was no merit in the husband’s appeal both against the children’s and the property orders. In addition, in the appeal there have been many applications for directions about the hearing of the appeal itself. Substantial costs have no doubt been incurred by the wife.
The husband’s financial circumstances are very poor. The costs associated with the directions hearing were reserved. The husband should pay those costs. However, the husband has no ability to meet the costs of the wife of the appeal and although that circumstance is not definitive we think in this case we should not make such an order.
As to the Independent Children’s Lawyer we received considerable assistance from him and it was necessary for him to appear on the appeal. Some contribution should be made by the husband to those costs and we see that the sum as asked being $2,200 must be modest in the circumstances.
I certify that the preceding one hundred & one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 5 February 2009
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