Perdicari & Perdicari
[2022] FedCFamC1F 618
Federal Circuit and Family Court of Australia
(DIVISION 1)
Perdicari & Perdicari [2022] FedCFamC1F 618
File number: SYC 8041 of 2017 Judgment of: MCGUIRE J Date of judgment: 26 August 2022 Catchwords: FAMILY LAW – PARENTING – Application by the wife seeking parenting orders in respect of the parties three children – where there has been little contact between the children and the husband – husband seeks orders that children live with him and that there initially be a six month moratorium on the wife spending time with the children – allegations of alienation - allegations of family violence – whether the children are at an unacceptable risk in the care of either party – children’s views - orders that children live with the wife – wife have sole parental responsibility for the children – husband to spend no time with nor have any communication with the children
FAMILY LAW – PROPERTY – Application by wife seeking a 75/25 per cent distribution of the net property pool - contributions – add-backs identification of the property pool – s 75(2) factors – orders dividing net property pool 75 per cent to the wife and 25 per cent to the husband
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA(3) and 79(2)
Cases cited: Briginshaw v Briginshaw [1938] HCA 34
Cerini & Cerini [1998] FamCA 143
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Kennon & Kennon (1997) FLC 92-757
M v M (1988) FLC 91–979
N & S and the Separate Representative (1996) FLC 92-655
Napier v Hepburn (2006) FLC 93-303
Omacini and Omacini (2005) FLC 93-218.
PST & CPR [2006] FMCAfam 36
Re Watson; Ex parte Armstrong (1976) 136 CLR 248
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi [2018] FamCAFC 173
Division: Division 1 First Instance Number of paragraphs: 232 Date of last submission/s: 17 May 2022 Date of hearing: 15, 16, 17, 18, 30 and 31 March 2022 Place: Hobart Counsel for the Applicant: Ms Druitt Solicitor for the Applicant: Bell Lawyers Counsel for the Respondent: Mr Berghofer Solicitor for the Respondent: Genuine Legal Counsel for the Independent Children's Lawyer: Mr Lawrence Solicitor for the Independent Children's Lawyer: Legal Aid New South Wales ORDERS
SYC 8041 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PERDICARI
Applicant
AND: MR PERDICARI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCGUIRE J
DATE OF ORDER:
26 August 2022
THE COURT ORDERS THAT:
PARENTING
1.All previous parenting orders be discharged.
2.The children X born 2006, Y born 2008 and Z born 2013 (‘the children’) live with the wife, Ms Perdicari.
3.The wife have sole parental responsibility for the children.
4.The children, spend no time with nor have any communication with the husband, Mr Perdicari, save and accept by agreement in writing between the parties.
5.Pursuant to s 68B of the Family Law Act 1975(Cth) the husband is restrained from:
(a)attending or approaching the children’s current or future places of residence, education or employment; and
(b)engaging in any form of surveillance, including but not limited to electronic surveillance of the wife or the children;
6.Leave is granted for the Independent Children’s Lawyer to provide a copy of these Orders to the children’s schools.
7.The appointment of the Independent Children’s Layer be discharged after meeting with the children to explain the Orders and Reasons for Judgment to the children.
PROPERTY
8.That the net proceeds of sale of the Suburb C property pursuant to the Consent Orders of 1 April 2022 be distributed between the parties as soon as practicable after settlement of the Suburb C property so as to effect a distribution of a net 75 per cent to the wife and 25 per cent to the husband of the property pool of the parties pursuant to the findings in the Reasons for Judgment herein.
9.Contemporaneously with the payments pursuant to Order 8 hereof the wife shall:
(a)transfer all her right, title and interest in the following to the husband absolutely:
(i)all personalty and chattels in the possession or control of the husband as of the date of these orders;
(ii)any motor vehicle in the possession or control of the husband as at the date of these orders;
(iii)the balances of any bank accounts or like investments in the name of the husband; and
(iv)the husband’s superannuation policies and entitlements with Superannuation Fund 1 and Superannuation Fund 2 superannuation.
(b)be solely responsible for and indemnify the husband in respect of the following liabilities:
(i)any and all liabilities attaching to any asset retained by the wife; and
(ii)any and all liabilities incurred by the wife since separation in either joint names or in her name alone.
10.Contemporaneously with the transfer and vesting Order in Order 9 hereof, the husband shall:
(a)transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(i)all personalty and chattels in the possession or control of the wife as at the date of these Orders;
(ii)the wife’s Motor Vehicle 1;
(iii)the balance of any bank accounts or like investments in the name of or to the benefit the wife as at the date of these Orders; and
(iv)the wife’s superannuation entitlements with Superannuation Fund 3.
(b)be solely responsible for and indemnify the wife in respect of the following liabilities:
(i)any and all liabilities attaching to any asset retained by the husband; and
(ii)any and all liabilities incurred by the husband since separation in either joint names or in his name alone.
11.Pursuant to s 81 of the Family Law Act 1975 (Cth) the parties intend that these Orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Perdicari & Perdicari has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J
APPLICATIONS
The wife, Ms Perdicari, is the applicant in an Amended Initiating Application filed 20 February 2019 seeking both financial and parenting orders. Her application was supported by an affidavit and an amended financial statement both filed 25 February 2022. She proposes that the parties three children, X born 2006 (age 16); Y born 2008 (age 14) and Z born 2013 (age 9) live with her and that she have sole parental responsibility of the children, with the children to spend time with and communicate with the husband at her sole discretion. In respect of financial matters the wife seeks orders that would give her 75 per cent of the net property pool and the husband 25 per cent.
The husband, Mr Perdicari, relied on his Amended Response filed 29 March 2022 seeking both financial and parenting orders. He relies on his financial statement and affidavit both filed 25 February 2022. He proposes that the parties have equal shared parental responsibility of the children and that for a period of six months the children live with him and spend no time with the wife. At the conclusion of that moratorium the husband proposes that the two eldest children, X and Y, spend time with the wife and himself in accordance with their wishes. Further, he proposes that the youngest child Z live with him and spend time with the wife each alternate weekend from the conclusion of school or 3.00pm on Friday until the commencement of school or 9.00am on Monday. In respect of financial matters the husband seeks orders that would give him 45 per cent of the net property pool and the wife 55 per cent.
The Court has the benefit of an Independent Children’s Lawyer (ICL) instructing counsel at the trial. The ICL proposes orders for sole parental responsibility of the children in the wife and the children to live with the wife. In the minute of orders contained in the written closing submissions the ICL proposed that the husband spend no time with the children and that injunctive orders be made restraining him from:
(a)attending or approaching the children’s current of future places of residence, education and employment;
(b)engaging in any form of surveillance, including but not limited to electronic surveillance, of the mother or the children; and
(c)publishing any information or documentation in relation to these proceedings including, but not limited to publication via the internet or social media.
The wife, in her written closing submissions adopted the orders proposed by the ICL. The husband, in his closing submissions, maintained his initial position.
THE ISSUES
CHILDREN
The broad issues before the Court in respect of parenting matters are:
(a)the children’s live-with and spend time with arrangements;
(b)whether there should be an order for equal shared parental responsibility or an order for sole parental responsibility;
(c)whether the children are at an unacceptable risk of harm given the serious allegations of family violence, including physical, verbal and emotional abuse which have been raised by both parties;
(d)issues of mental health raised by each of the parties against the other; and
(e)issues of the husband’s alleged anger management and substance abuse.
FINANCIAL
The issues before the Court in respect of financial matters are:
(a)the value of the property pool;
(b)asserted add-backs to the pool; and
(c)what the percentage split of the property pool should be as between the husband and wife after consideration of contributions and s 79(4)(d)-(g) factors.
BACKGROUND
The wife is 41 years of age. The husband is 42 years. The parties met in early 2001 and commenced cohabitation in 2003. They were married in 2004 and separated in May 2017.
There are three children of the relationship namely X born 2006 (age 16); Y born 2008 (age 14) and Z born 2013 (age 9). There are no current parenting orders in relation to the children. The father has not spent time with the children since July 2017, save for the interviews for the preparation of the Child Inclusive Conference and Family Reports.
At the commencement of cohabitation in 2003 the parties initially lived with the husband’s parents for a period of approximately 18 months.
The wife asserts she had wealth of approximately $240,000 plus superannuation as at the commencement of cohabitation and that the husband did not have any assets of significance at that date. This is disputed by the husband who says he made an initial contribution of $87,000. He also disputes the wife’s claimed quantum of initial contributions.
In August 2003 the parties purchased a property at J Street, Suburb K (‘the J Street Property’) for $385,000. The property was registered in the parties’ names as joint tenants. The wife says that she contributed at least $100,000 from the proceeds of sale of a Suburb L property towards a deposit and stamp duty. Two hundred and fifty thousand was provided by way of a mortgage to D Bank.
The wife says that in 2004 the husband purchased an investment property at Suburb N for $290,000. She says the husband’s parents provided $15,000 towards the purchase and $14,000 towards the deposit. The husband says that the purchase was made shortly prior to cohabitation.
In 2004 the parties married and move into the J Street Property.
In 2006 the child X was born.
In April 2006 the wife says that she returned to work for two days a week.
In Mid 2006 the J Street and Suburb N properties were sold. The wife says the J Street property was sold for $370,000 and the net gain from the sale of the Suburb N property was $40,000.
In September 2006 the wife returned to full-time work. The wife says the husband cared for X while she worked night shift.
In early 2007 the wife says the husband began working longer hours and that the paternal grandmother took care of X.
In mid 2007 the wife confronted the husband about his drug use after the child X (then 18 months of age) allegedly found a bong under the kitchen sink.
In late 2007 the parties purchased a property located at O Street, Suburb K (‘the Suburb K property’) for $540,000 using the proceeds of sale from both the J Street and Suburb N properties and a mortgage with the D Bank.
In December 2007 the wife accused the husband of deleting almost all of her male contacts from her telephone. The wife says the husband accused her of infidelity numerous times.
In early 2008 the wife alleged that the husband verbally abused her, shoved and pushed her to the ground while she was walking in a park with X. The wife was pregnant at the time. The wife filed a complaint at the K Police Station, but later withdrew it as the husband’s parents said they would send him to rehabilitation.
In 2008 the parties’ child Y was born. The wife alleged that the husband was escorted from the hospital by security for acting aggressively.
In mid-2008, a few days after the birth of Y, the husband’s parents arranged for the husband to be admitted into a Rehabilitation Facility for his drug addiction.
In mid-2008 the wife returned to work a few days a week.
In late 2008 the wife returned to full-time work.
In early 2009 the wife alleged that the husband changed her mobile telephone number and gave her a new number under his account so that he could keep “an eye on her”. The wife alleged the husband began controlling her email and Facebook account.
On 22 July 2008 the parties jointly purchased DD Place, Suburb C (‘the Suburb C property’) for $670,000 with a $605,000 home loan from D Bank and the remainder paid by way of a deposit.
In late July 2009 the parties moved into the Suburb C property.
In August 2009 the parties sold the Suburb K property for $610,000 and applied the net proceeds of $204,437.97 towards the Suburb C property.
In August 2010 the wife commenced work with P Company.
In December 2010 the parties argued. The wife asserts the husband punched her with a closed fist. The wife and children left the matrimonial home and lived with the wife’s sister for three months.
In April-May 2011 the wife returned to the matrimonial home with the children.
In 2013 the child Z was born. The wife says that she worked up until three weeks prior to the birth of Z.
In mid-2013 the wife alleges the husband damaged or destroyed household contents during a moment of anger and frustration.
In mid-2013 the wife returned to full-time work.
In 2015 the wife alleged that the husband damaged a washing machine and fridge in their home.
In 2016 the wife alleged that the husband assaulted X by hitting him on the head and slapped Y across her back whilst visiting their great paternal grandmother in hospital. The wife says that children had marks on their bodies and were crying when they returned from the hospital.
In 2016 the wife alleged that the husband hacked into her back account withdrawing savings of up to $22,000.
On 30 April 2016 the wife alleged that the husband arrived at her workplace with the children and yelled at her and the children in front of patrons. The wife alleged that upon her return home the husband threw a wooden ball at her, placed his arm across her neck and pushed her up the stairs causing her to hit her head on the stairwell. The wife alleged that the child X walked into one of the bedrooms and the husband said “get out you little cunt”. The wife reported the incident to the Police and an interim AVO was issued for the protection of the wife and children. The husband moved out of the matrimonial home.
In mid-2016 the wife alleged that she received approximately 2000 text messages from the husband.
In late 2016 the wife says that she began online dating and was contacted by someone called “[Mr EE]” who appeared to know a lot about her personal life. The wife says “[Mr EE]” tried to convince her to make amends with the husband and told her she has a personality disorder.
In late 2019 an AVO was issued in favour of the wife.
In late 2016 the wife says the parties met and the husband asked her to revoke the AVO and made threats to “… bury you if you do not follow my instructions”. The AVO was revoked a few days later.
On mid 2016 the wife alleges that the husband checked her into a wellness clinic for an assessment for a mental health issue.
From early 2017 to mid 2017 the wife alleges that the husband refused to find another job after being informed of his redundancy at Q Company. The wife says she moved out of the parties’ bedroom into the child Z’s bedroom.
In February 2017 the wife says that she confronted the husband about his drug use after allegedly finding marijuana in his room. The wife says the husband claimed he is using drugs because he “is depressed and can’t handle life”.
In April 2017 the wife says the parties had an argument and the husband left the home only to return later repeatedly banging on her bedroom door. The wife left with the children and moved into the paternal grandparents’ home, which was vacant at the time, for two weeks.
In April 2017 the husband says that he was made redundant from his position as a professional with Q Company. The wife says he was made redundant in May 2017 and received $40,000 from his redundancy package.
On 6 May 2017 the parties separated after the husband became verbally abusive and repeatedly banged on the wife’s bedroom door. One of the children, Z, was present at the time. The wife alleges that during this incident the child X told her that the husband had hit him. The wife says she tried to call the police, but was unable to because the husband “grabbed the phone” out of her hands and cracked the screen. The wife says the husband’s sister and parents attended the home.
From 6 May 2017 until Mid-July 2017 the wife and children lived with the paternal grandparents in their home.
From 6 May 2017 until 18 February 2019 the husband resides at the Suburb C property.
From July 2017 until present the children have not spent any time with the husband save and except for the meetings conducted by Dr R and the Family Consultant for the Child Inclusive Conference.
In mid 2017 the wife and children moved to the wife’s sister’s home at Suburb F.
Between September/October 2017 to October 2019 the wife alleges that the husband did not pay the mortgage repayments for the Suburb C property.
On 18 September 2017 the husband says he sent a text to his son and received a reply referring to him as “Mr Clever” and stating the husband was restrained from communicating with the children by way of the ADVO.
On 4 December 2017 the wife filed an initiating application seeking financial and parenting orders together with a Notice of Risk.
In late 2017 the wife secured a 12 month lease in Suburb E for $395 per week and lived there with the children. The wife says that she borrowed $10,000 from her sister to furnish the home.
In early 2018 the husband says an ADVO taken on behalf of the wife was withdrawn by the Police.
On 11 May 2018 Orders were made by Judge Boyle for the parties to sell DD Place, Suburb C and for the parties to attend a Child Inclusive Conference. Orders were made by consent that the husband participate in urinalysis testing at the request of the ICL.
On 31 May 2018 the husband filed a Response to Initiating Application seeking financial and parenting orders including orders for equal shared parental responsibility for the children and that the children live with the wife and spend time with the husband during alternate weekends. The husband also filed a Notice of Risk.
On 18 July 2018 Child Inclusive Conference Interviews take place. The Family Consultant reported that she had serious concerns about the children spending any time with the husband based on his presentation, his views of the wife, his views of the children, and the children’s views and experience of the husband. It was recommended that the husband continue to engage in mental health counselling and support.
On 16 August 2018 the matter came before Judge Boyle and orders were made allowing the wife to attend the Suburb C property to collect the children’s and her personal property.
On 26 August 2018 the wife attended the Suburb C property and alleges that the children and her personal effects were in poor condition.
On 6 November 2018 the Suburb C property sustains fire damage allegedly caused by an overheating phone/charging cable.
In December 2018 the wife says she was informed by City T Council that the rates had not been paid for 6 months and were in arrears of just under $1,000.
On 4 December 2018 the matter came before Judge Boyle in the Federal Circuit Court and the orders made in relation to the sale of the Suburb C property were suspended.
On 5 December 2018 wife says she received approval from D Bank to refinance the Suburb C property into her sole name.
The wife alleges that as at 22 January 2019 the amount owing on the D Bank home loan accounts for DD Place, Suburb C were $144,310.66 and $33,363.73.
On 20 February 2019 the matter came again before Judge Boyle and an order was made granting sole occupancy of the Suburb C property to the wife and the children.
From 28 February 2019 until 20 April 2019 the wife and children occupy the Suburb C property.
On 4 March 2019 Orders were made by Judge Boyle releasing the Family Report prepared by Dr R.
On 25 March 2019 the father’s application, pending an appeal, for a stay of Orders made on 20 February 2019 was heard by Judge Boyle. Judgment was reserved and Judge Boyle made an order pursuant to s 102NA of the Family Law Act 1975 (Cth). A stay pending the appeal was granted and the husband resumed occupation of the Suburb C property.
On 15 April 2019 Trial directions were issued by a Registrar and the matter was expedited and transferred to the Family Court due to insufficient hearing time in the Federal Circuit Court.
On 14 June 2019 the husband’s Appeal against interim orders requiring him to vacate the Suburb C property was heard by Ryan J in the Full Court. The appeal was allowed. Reasons for Judgment were given and orders were made that the husband receive a sum of $50,000 from the D Bank Home loan account and that the wife and children enjoy sole occupancy of the Suburb C property.
In late 2019 the wife made a Police statement in respect of alleged concerns for the safety of herself and the children.
In late 2019 a provisional ADVO was made for the protection of the wife and children against the husband. The husband was served in the same month in019.
Shortly after, in 2019, the application for the ADVO was listed at the Suburb U Court. An interim AVO was made for the protection of the wife and the children.
In late 2019 the AVO proceedings were listed at Suburb U Court and a final AVO was made for the protection of the wife and the children.
In mid to late 2019 the husband filed an application to annul the AVO.
On 30 January 2020 the Final AVO was changed to an Interim AVO and the matter was adjourned for a mention date in May 2020. Those proceeding are yet to be finalised.
On 2 March 2020 the matter came before Chief Justice Alstergren and orders were made listing the matter for a compliance check on 1 June 2020 and that the parties attend a conciliation conference.
On 1 June 2020 Chief Justice Alstergren orders for the matter to be listed for final hearing on a date to be fixed by the Court on property and two discrete parenting issues. Orders were made that the parties attend a conciliation conference and further trial directions were ordered including an updated family report be prepared by Dr R.
On 14 September 2020 Justice Henderson, in Chambers, released the updated family report of Dr R to the parties and made orders that the husband be permitted to show the report to his treating practitioners.
On 18 September 2020 Justice Henderson made orders for the matter to be expedited and placed in the pool of matters awaiting final determination. Further trial directions were made.
On 13 August 2021, in the callover of Sydney matters awaiting trial, I listed the matter for a four day final hearing before myself commencing 15 March 2022. Further trial directions were made at that time for the filing of documents and an order that pursuant to s 102NA of the Family Law Act 1975 (Cth) that the husband be represented at the hearing of the matter.
THE RELEVANT LAW - PARENTING
The focus in parenting proceedings is on the best interests of the children which is to be the paramount consideration in determining their living and parenting arrangements pursuant to s 60CA of the Family Law Act 1975 (Cth) (‘the Act”). In determining the best interests of X, Y and Z the Court is to reference the parties’ proposals and the probative evidence to the numerous and mandatory factors set out in s 60CC(2) and (3) of the Act against a background of the objects and principles of the legislation set out in s 60B which provides as follows:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In a broad context the balancing process for the Court here is on the one hand endeavouring to make orders which benefit the children in having meaningful relationships with both their parents in circumstances where the children's relationship with their father is virtually non-existent at the moment and, on the other hand, making orders, where necessary, which protect the children from family violence or abuse whether that be of a physical, emotional or moral type. Other factors such as the children's own views and preferences together with the capacity of each of the parents to attend to the children's physical, intellectual and emotional needs are also relevant here.
Consequently, in parenting matters where the best interests of the children is the focus then neither parent carries an onus of proof in the general sense although where one or other makes assertions of fact or allegations then that party does have an onus to prove that fact on the balance of probabilities pursuant to s 140 of the Evidence Act 1995 (Cth) which provides as follows:
Civil proceedings: standard of proof
(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 that the 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.
Section 61DA of the Act provides a presumption that it be in children's best interests for their parents to exercise equal shared parental responsibility for them. Section 61B of the Act defines this “responsibility” as relating to the “… duties, powers, responsibilities, and authority which, by law, parents have in relation to children”. In a practical sense, this normally refers to the decision making process for long–term important decisions for children as opposed to the more mundane day–to–day decisions which parents habitually make for children. Matters of education, religious affiliation, and medical procedure are often given as examples of the obligations of “parental responsibility'”. It is a consideration and common requirement for such an order that parents have a demonstrable ability to communicate and co-parent in the practical discharge of this obligation. In the matter before me the wife asks for an order for sole parental responsibility to be vested in her. The husband asks for an order for equal shared parental responsibility.
The presumption at 61DA does not apply if the Court is satisfied that there has been family violence or abuse of a child within the broad definitions of those terms in the Act. The wife here argues a culture of family violence perpetrated on her and the children and of a physical, emotional, and coercive type by the husband. The husband asserts that the allegations of family violence which substantially relate to the conflict arising between the parties, are mutual, situational and where he says that he is of no risk to the children. Alternatively, the presumption of equal shared parental responsibility may be rebutted by evidence satisfying the Court that it would not be in the best interests of the children for their parents to exercise this responsibility.
There is significance in the presumption of equal shared parental responsibility applying or such orders being made within the discretion of the Court in that the Court is then mandated to enter into a pathway of considerations in respect of the children's best interests and ultimately their living and parenting arrangements where, firstly, the Court is to consider whether it is both in the children's best interests and reasonably practicable for the children to live in an equal time arrangement between the parents. If the answer to either of those questions is in the negative then the Court turns to consider whether it is both in the children's best interests and reasonably practicable for them to live in an arrangement of “substantial and significant time” between their parents. Substantial and significant time is defined in s 65DAA(3) of the Act as follows:
(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
The wife and the ICL here argue for orders that the husband spend no time with the children given what they say is an unacceptable risk of harm to the children which cannot be mitigated with those risks being of physical and/or psychological harm, and/or exposure to family violence.
The task for the Court here is a complex one where the notion of risk is a predictive and prospective one although also one which must be based to a degree on the Court making findings of historical fact and where risk is determined on “possibility” and not subject to the standard of proof at s 140 of the Evidence Act 1995 (Cth).[1]
[1] Isles & Nelissen [2022] FedCFamC1A 97.
There is nevertheless a broader perspective for the Court and as noted in M v M[2] where the High Court observed:
Viewed in this setting, the resolution of an allegation of… abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted both by the supposed need to arrive at a definitive conclusion on the allegation of… abuse. The Family Court’s wide -ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parties to be decided solely by reference to the acceptance or rejection of the allegation of… abuse on the balance of probabilities.
In considering an allegation of… abuse, the Court should not make a positive finding that an allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw[3]…
It does not follow that if an allegation of … 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
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that … abuse has taken place. …
In resolving the wider issue the Court must determine whether on the evidence there is a risk of … abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of … abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. …
[2] (1988) FLC 91–979 at 77,080 to 77,081.
[3] [1938] HCA 34
The notion of the risk being “unacceptable” is of real significance to the consideration here where it may be that tools are available to a court to turn an “unacceptable risk” into an “acceptable risk”.[4] Supervision is the most obvious of such tools available to courts to mitigate the risk to children and therefore perhaps enable a continuation or establishment of meaningful relationships.
[4] PST & CPR [2006] FMCAfam 36, at [71].
Where the task of these courts goes further than that of juries in the criminal jurisdiction making findings of “guilty” or “not guilty” but where the overall consideration is the best interests of the children then it is not simply a process of moving by “default finding”, where a court is unable to make a positive finding of abuse, to a finding of “unacceptable risk”. Rather, the consideration as to unacceptable risk must be an independent one based on the weighing of evidence. As Fogarty J noted in a dissenting judgement in N & S and the Separate Representative:[5]
One of the difficulties which arises in the application of these principles is in seeking to preserve an independent content of the notion of “unacceptable risk”. Though the purpose behind the notion is to assist the 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 … 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 … abuse, but given no substantive meaning or weight. It is easy to say that there is or is not an unacceptable risk of … 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, supra, 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.
[5] (1996) FLC 92-655 at 82,713.
As the Full Court in Napier v Hepburn[6] observed:
[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.
[6] (2006) FLC 93-303.
Consequently, the consideration of risk is an evidence–based predictive and prospective exercise within the wider issue of the children's best interests and including consideration of what might mitigate the risks.
The husband’s case – parenting
The husband says that where the children have no experience of him and his extended family for some five years then they should be given an opportunity to develop those relationships. He proposes an arrangement which he says would allow the children to explore their relationships with him and his family without what he says are the negative, manipulative, and self–interested interventions of the wife.
The husband's case changed in its particulars of orders sought throughout the trial but where in final submissions his counsel, properly in my view, submits that the husband accepts that the older children, X and Y, may have entrenched views contrary to spending time with him and where he would respect those views. He argues, however, that his relationship with the youngest child, Z, is one not yet contaminated by the wife's negativity and would prosper by her spending time with him. Despite his concessions in respect of the older children's views, the husband maintains that there should be orders for all three children to live with him for a period of time and with a moratorium on their time with the mother and thereafter credence be given to the views of X and Y but where Z would remain living primarily with him.
With some optimism, the husband proposes that there be an order for he and the wife to share parental responsibility for the children.
The husband denies the allegations of family violence levelled at him by the wife and in turn says that the wife herself has been physically and coercively violent to him and where the children have been exposed to such violence and consequently imbued with the wife's negative views of him.
The husband proposes a form of family therapy to support the children's transition to him.
The wife’s case – parenting
The wife says that the presumption of equal shared parental responsibility does not apply in this case where there has been substantial family violence perpetrated by the husband in its physical, coercive and controlling forms. In any event she says that an order for equal shared parental responsibility would be contrary to the children's best interests where the parents themselves remain in high level conflict, mistrust and without communication.
The wife argues that the status quo of the children living with her should continue. She has been the sole carer and primary financial provider for the children since separation. She says that the children are not desirous of a relationship with the husband. She says that the husband is of violent and angry disposition being prone to outbursts, physically and verbally, and demonstrably unable to control his emotions. She says that the husband has minimal, if any, demonstrated parenting skills, insight or capacity. Consequently, she now argues for no orders as to time or communication between the children and the husband.
The Independent Children’s Lawyer’s case
The ICL says that the evidence shows a manifest risk to the children in the care of the husband including for any periods of time–with and where the husband continues to deny his anger management issues and where previously manifested within the family unit and, as such, those risks cannot be mitigated.
The ICL identifies the continuing conflictual and mutual accusatory relationship between the parents to suggest no optimism for future improvement and hence advocates an order for sole parental responsibility in the wife.
The ICL recognises the long status quo of the children living with the wife with no contact between the children and the husband for some five years save for short meetings on two occasions with the Court Expert which themselves proved problematic. In this sense the ICL argues that considerable weight should be given to the views of the children being contrary to them having a relationship with their father.
Where the wife initially argued for orders that time for the children with the husband is “in accordance with the children's wishes,” the ICL opposes any such order where this would obligate the wife, to determine and assess such wishes where she has demonstrated antipathy towards the husband and therefore where the husband's innate mistrust of the wife would be inevitably tested. More generally the ICL argues, with some merit, that these responsibilities should not be delegated to children and especially where they have negotiated with some difficulty the conflictual separation of their parents.
THE EVIDENCE
The husband
The husband relied on his trial affidavit sworn the filed 25 February 2022. The husband gave evidence and was cross-examined.
The husband was, relative to the wife, not a good witness. He was often aggressive and angry in response and other times prone to portraying himself as a victim, all of which gives some corroboration to the wife's claims of the husband being a perpetrator of physical, emotional and coercive family violence.
The husband gave blanket denials to the numerous allegations of violence in its various forms. His evidence in this regard was unconvincing where his responses were more often deflected toward blame of the wife. Indeed, a disturbing incident with the husband in the witness box gives lie to his denial of the anger management issues where his obvious frustrations during cross-examination manifested in an angry and potentially violent outburst where the opposing counsel, the ICL, and others in the Court were required to leave whilst the husband's counsel, his mother, and his partner took considerable time to calm him.
The wife
The wife relied on her trial affidavit filed 25 February 2022. The wife gave evidence and was cross-examined. The wife presented as a completely opposite personality than the husband.
The wife in giving her evidence in court presented with an overly assertive persona. Her dislike and negativity towards the husband were palpable and where she made no attempt to disguise these emotions which she says result from the husband's violent behaviour towards her and the children during and since the relationship. She was forceful but consistent in her responses in cross-examination. Overall she presented as a believable witness who was child focused but unable to say anything positive about the husband. When challenged in cross-examination she was generally able to particularise and clarify explanations and I found her evidence in this respect to be honest and plausible, as for instance, when challenged at length on her withdrawal of an AVO complaint at City M police station and where such evidence prima facie might otherwise have compromised her credibility. Overall where issues of credit remain between the husband and the wife I prefer the evidence of the wife.
Ms V
Ms V provided an affidavit filed 25 February 2022 for the husband’s case. Her affidavit was read into evidence. Ms V is the husband’s current partner. She deposes that the parties met in December 2020 and started dating soon thereafter. She says they live separately and are financially independent of one another. She deposes generally positively to the nature of her relationship with the husband and his relationship with her two children.
Ms V’s evidence was understandably supportive of the husband but perhaps not informed objectively as to the background evidence and hence of little assistance to the Court except as to observations. She presented as a person who might be a positive addition to the children’s lives.
Ms W
Mrs W provided an affidavit filed 25 February 2022. She gave evidence for the husband. She is the mother of the husband and grandmother of X, Y and Z.
The paternal grandmother was understandably partisan and supportive of her son but was disturbingly vocal in her criticisms of the wife. She is clearly a loving mother and grandmother but one lacking objectivity. She seemed unable to see fault in her son but ready to do so in respect of her former daughter-in-law.
The Single Expert - Dr R
Dr R is a consultant child, family and adult psychiatrist of considerable experience who provided two reports dated 28 February 2019 and 4 September 2020. Dr R was cross-examined.
In his first report at [221] Dr R recommends:
The circumstances identified did not allow the parents to care for the children with shared parental responsibility or any form of shared care. Unless the Court finds in favour of the father's account, there is little alternative but to support the mother's proposal. In the report writer’s view, further Orders for contact with the father at this stage were unrealistic. That said, should the father restabilise in his mental health, I would strongly support the children being given the choice to have further contact with their father and paternal grandparents in accordance with their wishes.
Dr R’s second report particularises with more specificity his recommendations at [107] thus:
Unless the Court accepts the father's allegations that the children have been neglected and manipulated by the mother are accepted by the Court, I would respectfully recommend to the Court the following:
1. Sole parental responsibility to the mother.
2. The maintenance of primary residence with the mother.
3.No Orders for contact with the father or paternal extended family. That said, all three children are aware that their father and paternal grandparents are motivated to maintain contact in the future should they wish.
4.For the mother to co-ordinate further therapeutic intervention for the children on referral from their General Practitioner as required.
5.The father will benefit from ongoing psychological and psychiatric care.
Dr R maintained these latter recommendations when cross-examined in court where he emphasised that even some improvement in the husband's mental health would not to cause a change in his view. He appeared to place emphasis on the experiences of the children informing what he saw as rational and mature views albeit not without some influence from the wife.
Significantly in the second report at [22] – [24] the oldest child X disavows the husband's allegations of the children being manipulated in their views and is reported as follows:
[22][X] spoke enthusiastically about his experience living at home with his mother. He told me he liked it and was well–treated by her. He denied that he had ever had any problems. That said, when asked about the argument with his mother which had led him to ring his paternal grandparents, he agreed that this had been the case. He stated that the argument had resolved shortly after. He had found the subsequent WhatsApp communication with his paternal grandmother “interesting”. He had been surprised that they had encouraged him to remain with his mother and resolve the problems.
[23][X] felt fine that there had been no contact with his father. His mother had supported him and his siblings to have contact should they wish. None of them had chosen to do so. He denied missing his father. He understood that he would be meeting with his father during the assessment. He stated, “I'm fine with it”. He denied that there were any issues or problems related to this.
[24]When asked about his view regarding his residence and contact, [X] initially stated, “I'm honestly not sure. I haven't thought much about it”.
Y is reported as appearing mature, informed and independent where at [39] – [44] appears the following:
[39][Y] discussed her family experience, “I feel like it was definitely a pretty dramatic time before my parents split up. I remember that there was a fight practically every night when my dad came home. And they wouldn't be like regular verbal flights. To the point when my mum would have to lock herself in her room as Dad would come home and try to knock doors down. I mean, it was bad. I didn't think for me it was the kind of space where anyone should have to live through. I don't think my mum left for herself but for us, as she wanted us to be okay with everything”.
[40][Y] told me that post–separation things had been OK. There had been not much fighting anymore. There had been less conflict. It had been a lot safer for her and her siblings.
[41]She described her current family life, whereby her mother would wake them up between seven and eight in the morning and take them to school. She understood that her mum didn't have as much money as usual. They didn't expect to have as much stuff as other children. She understood that her mother was trying her hardest so that they would get through things together.
[42][Y] didn't mind that she hadn't seen her father since the family observation in February 2019. She explained, “I don't feel like my dad is a part of my life anymore”. She commented that she would prefer not to see him at the family observation but would do so if this was required by the Court.
[43][Y] expressed a clear view that she wished to stay with her mum and have no contact with her father. When asked about her paternal grandparents, [Y] commented, “They made their decision when they found out about our situation. When they sided with him; when they found out what he'd done. They shut us out completely. It's just not something I want anymore.
[44][Y] stated that she generally felt OK: “I feel like I would have liked an easier childhood, with parents and a perfect happy life. It would have made me a better person. But I've got over it. Like so many other things in my life which went downhill. I had to move schools a lot…
Z was just seven years old at the date of the second report. She is described as forthcoming in her experiences which are obviously not as personal as those of her siblings and where the husband's claims of manipulation and influence by the mother achieve some validation.
At [29] – [35] Z is reported as:
[29]She described her mother as “always caring and whenever she has time for us, she always spends it with us”. She told me that there was nothing that she didn't like about her mum.
[30][Z] identified everyone in the family feeling happy. She stated that she felt happy a lot. She felt happy being home with her mum and spending time with her. Her mother was the happiest in the family, “because she has us”. Her mum would tell her that a lot.
…
[34][Z] identified her father as the angriest in the family. She had last seen him at the family assessment. She recalled running out of the room when she saw him. She predicted that this would happen again at this assessment. Although she thought her father had been angry a lot, she had no memories of this. Her mother had told her stories about this a long time ago when she was a baby but she was unable to remember them now.
[35][Z] described her paternal grandparents as nice. She thought it would be nice to see them. She was fidgety when asked about seeing her father in the assessment.
The children were seen by Dr R with each of their parents and where the father's lack of capacity and insight are exposed at [53] – [60] as follows:
[53][The husband] entered into a debate with [Y] who took exception to his repeated statements that “there is always two sides to the story”. When [Y] stated, “I'm happy with the side that I've chosen”. [The husband] retorted, “Don't talk to me like that. You don't understand. Your father is a very intelligent guy. If someone is causing harm, you have to take evasive action. So that I don't end up in goal. It was in my best interest to step away. Your facts are incorrect”. As [the husband] persisted with this narrative, [Y] retorted, “You tell me your awful sob story stopping seeing us and staying away… You should act like my dad. Why didn't you try to contact us?' [Y] went on to accuse him of slamming doors, being selfish and never thinking about the children. [The husband] responded that he'd been working hundreds of hours and that their mother had cheated on him throughout the marriage. [Y] went on to talk about her own experience of not having a childhood due to the exposure to parental conflict.
[54][The husband] failed to respond empathically to the children's experience and instead used the discussion as an opportunity to justify his actions and make allegations regarding the children's mother. [Z] ran in and out of the room as this discussion continued. [The husband] asserted that he had done everything he could for the children. [Y] finally yelled at him that she did not want him in her “fucking life'' and walked out of the room. She refused to return later when invited to join the paternal grandparents.
[55][The husband] continued in an intense discussion with [X]. He explained that he needed to stay away. He described being physically assaulted by [the wife] and having been put in gaol by her. He stated that they had wanted to cut him out of the children's life. [X] respond with a discussion of his own experience of his father's absence.
[56][The husband] attempted to show [X] what had really happened by referring to his electronic recordings. He denied [X]’s (sic) reported experience was accurate. He asserted that [the wife] had alienated the children from him. He explained that he had been placed under an AVO and that the children's facts were “completely wrong”. [X] retorted that “the living conditions were totally unacceptable”. When [the husband] went on to complain about being stalked by [the wife], [X] responded, “I don't want this. I'm telling you my experience”. When [the husband] continued to dispute the children's experience, [X] responded, “I've gone through it firsthand. You kicked us out of the house”. As [the husband] continued to discuss the “irreversible damage” by [the wife] to him [X] responded, “If you’d cared, you'd have contacted me”. [The husband] declared in response, “I love you so much. I gave you everything. Don't say any negative shit. I'm not listening to it”.
[57][Z] repeatedly interjected, “Nice language” when her father used swear words. [X] commented, “I just wish things weren't the way they were”. When [the husband] continued to discuss the threat of spending his life in goal, [X] responded assertively. He asserted that [the husband] had been a bad parent, abusive and hitting them. [The husband] responded with rhetorical questions and repeated the mantra. “There are two sides to they (sic) story”. [The husband] complained about being judged by [X] and again referred to [the wife’s] abusive behaviour and litigation which had costing him many thousands of dollars. When [the husband] declared that [X] should not live in fear, [X] stated that he was not afraid of his father.
[58][The father] repeatedly asked [Z] for a hug; however, throughout the family observation she cuddled up to [Y] and then [X]. She maintained eye contact with [the husband] and was evidently interested in the communication between her older siblings and her father. [X] concluded: “I just wish it wasn't the way it was”.
[59][The husband] continued in his defence of his actions in his discussion with [X]. He alleged that his contact with the children had been stopped by the Police otherwise he would have been sent to goal. He complained that things would “magically happen for your mum's benefit”. He complained to his son that people had viewed him as delusional. He emphasised that he had documented everything. [X] pleaded, “I didn't come here to argue with you. I see you once a year”. Nonetheless, [the husband] continued in his self–defence. He held up his phone emphasising that he had evidence. He repeatedly stated, “There are two sides to the story. It doesn't have to be this way”. [X] agreed, “I wish it wasn't”.
[60][The husband] complained that he wasn't listened to. He referred to the children having been poisoned by their mother and their claim of having a safety room at the house. [The husband] told [X] that he was a big boy and he would be able to work things out.
As in court, the Family Report exposes the husband as being focused on defending himself with an almost obsessive focus on previous and pending ADVO applications. He portrayed himself as the victim.
Dr R saw the children's views as being strong and established in identifying with their mother and rejecting any relationship with their father where he said at [84]… “that the children were strongly influenced in their views by their life experience and communication with their mother”. …
Dr R is of the view that strong weight should be given to children's views.
Consistent with my observations of the husband in court, Dr R opined at [92]:
Both parents continued to dispute that their (sic) capacity of the other parent to attend to the children's developmental needs, including their emotional and intellectual needs. There was no significant change in parents' position since the previous assessment. That said, the father was observed to be calmer than when interviewed in February 2019. At that time, he was observed to be agitated and abusive. His current presentation suggested a stabilisation in his mental state. That said, his lack of empathy for the children's experience will impair his capacity to attend to their developmental needs. He was observed to be self–preoccupied rather than prioritising the children's experience.
Dr R viewed the husband's complaints and criticism of the wife’s parenting as “inconsistent with the children stated experience” and where the husband's lack of insight is notable when he apparently criticises the wife as “neglectful” by pursuing her employment rather than caring for the children in circumstances where he contributes only a bare statutory minimum in child support.
Dr R observed the wife as demonstrating a loving attitude in her interactions with the children and a committed approach to the responsibilities of parenthood. At [98] he viewed the wife as demonstrating a stable mental state whereas the husband asserted, as in court, that the wife suffered “borderline narcissism”.
At [103] Dr R opines that all three children have been profoundly affected by their exposure to parental conflict which they reported as “distressing and overwhelming”.
Dr R's first report gives some credence to the wife's assertion that the husband perpetrates coercive violence where she reports at [14]:
[The wife] identified herself as the primary care for the children while continuing to work. She had had four weeks maternity leave following [X]’s (sic) birth and then four weeks with [Y] and six months with [Z]. She had worked for nine years with [P Company] and 10 years in [a service industry]. [The husband] had made her quit her job in [the service industry], “as it was not fitting for a mother to work at night as a place was home with the kids”. [The husband] subsequently confirmed that this was his view.
At [19] of the first report appears the following in respect of the wife:
[The wife] denied having been diagnosed with a psychiatric condition. When asked if she had ever been diagnosed with Borderline Personality Disorder, she denied this was the case. [The husband] had proposed this diagnosis, but it had been rejected by the doctors at the [AA Clinic] during a three–day admission in 2016. She had felt overwhelmed, distressed and depressed state and [the husband] had threatened to destroy her life if she did not follow his instructions. He had discharged her from hospital prematurely as he was “pissed” given the doctors' failure to ratify his view of her diagnosis. Given [the husband’s] agitated state, the doctors had expressed concern for her safety. On returning home, “he went crazy”. She had insisted on returning home with him as she was afraid. She commented that [the husband] had been at the clinic “almost the entire time” which did not give her a break. The [AA Clinic] medical records validated [the wife’s] account of her presentation and [the husband’s] behaviour.
Still further at [34] the wife alleges:
[The wife] alleged that [the husband] installed tracking software and spyware on her devices. [The husband] subsequently agreed that this was the case and justified this as necessary. [The wife] had discovered this as [the husband] was aware of her correspondence and meeting with his sister.
Dr R’s experience and observations of the husband mirror my own in court where at [41] – [42] he is reported as:
[41]Although [the husband] arrived on time and initially established a good rapport, he became increasingly agitated and preoccupied as the interviewed (sic) progressed. At times, he raised his voice and challenge the report writer in an angry manner. At other times, he was able to calm down. He consistently referred to [the wife] in an abusive manner, referring to her by the term “bitch”.
[42][The husband] was pressured in his communication and repeatedly returned to the theme of [the wife’s] misdemeanours. He found it difficult to address any aspect of his behaviour or separate the children's experience from this preoccupation.
Any hesitation in the children's expressed views in the first report had clearly become solidified by the time of the second report.
In court Dr R confirmed his recommendations from the second report. He explained the children's entrenched views and the lack of any improvement in the parental relationship with no evident communication or collaboration. He continued to question the husband's parenting capacity and insight. He noted that the paternal grandparents are supportive of the husband but remain hostile towards and blaming of the wife. Dr R was dismissive of the husband's proposal for family therapy in the circumstances of the challenging family dynamics.
Importantly, Dr R saw no indication that the husband showed a capacity to moderate his behaviour (noted in his office and this Court) even where under scrutiny.
Dr R repeated his concerns as to the husband's propensity to record conversations and events (including perhaps the Family Report interview process) and lacking the respect and trust crucial to relationships whereas I might see it as an indication also of the husband almost paranoiac views of the wife and where Dr R emphasises that the husband should not, as was evident in the interviews with the report, use his time with the children to argue his case against the wife and to put his own agenda.
When questioned by the husband's counsel as to the prospects of family therapy, Dr R responded that psychiatric treatment and the prescription of anti–psychotic medication for the husband might be a more appropriate initial step.
I had the advantage of seeing and hearing Dr R be cross-examined. He presented as informed, balanced and empathetic in his views and recommendations with a notable reality to those opinions.
Family Consultant - Ms BB
Ms BB is a Family Consultant. She prepared a Child Inclusive Conference Memorandum to Court (CICM) as long ago as 19 July 2018. Each of the parents and children were interviewed for the purposes of the CICM.
The Family Consultant described X as a “friendly and polite boy[7]” who enjoys and does well at school. She said X presented as having a loving a “close relationship with his mother and siblings.” She reports X describing his relationship with his mother as “excellent” and feeling well looked after and that she “does her best”.[8]
[7] At page 5 of the CICM.
[8] Ibid.
Conversely, she reports X as describing his relationship with his father prior to separation as “alright” and his father “not being home much.”
The Family Consultant reports X describing his father as “an angry person prone to very sudden outbursts”… “quite odd”, “drives dangerously …” has no parenting skills, cannot cook and eats take away every day”.[9]
[9] Ibid.
X is reported as saying he is fearful of his father because he has seen him punch his mother in the home. She reports X as not wanting to repair his relationship with his father, not wanting to spend time with him and wanting nothing to do with him.
Y presented as a “mature and bubbly pre-adolescent who spoke enthusiastically about her new school being a positive change for her[10].” She said Y described having a “positive and close relationship” with her mother and her mother being “encouraging of her” and “always there for us”.[11]
[10] Ibid at page 6.
[11] Ibid at page 7.
The Family Consultant reports Y as not having “a strong relationship” with her father and that she does not “like” or “respect him” or want to spend any time with him because he is “scary” because he “throws things and can be violent.” The Family Consultant reports Y as saying she is fearful of her father because he has “hit and slapped her and X in the past which has left marks on her.” Y says that he has hit Z because “he doesn’t know how to be patient with her.”[12] She reports Y as saying that she witnessed her father kick a hole in the bedroom door, and caused [the wife’s] nose to bleed.
[12] Ibid.
The Family Consultant describes Z as initially refusing to speak with her and becoming agitated and defiant when encouraged to do so by her brother and sister. This was despite the Family Consultant reassuring Z that she would not be seeing her father today. The interview was not conducted until the end of the day when Z indicated that she wanted to speak with the Family Consultant. The Family Consultant describes Z as distracted and uninterested in engaging in general conversations or conversations about her family. The Family Consultant reports Z commenting “I don’t want him back” when asked about her father and said Z stopped answering questions about her family or general questions.
The Family Consultant opined:[13]
The accounts provided by [X] and [Y] suggested that they have already been exposed to a serious level of Chronic parental conflict, dysfunction, family violence, and physical abuse.
[13] The final page of the CICM first dot point.
The Report recommended further assessment by the Court as there were “serious disputed concerns of parental mental health and substance abuse”.[14]
[14] Ibid second dot point.
The Family Consultant reported the husband as “presenting as having a very negative view of [the wife] and X, and about the alleged experiences of the children in their mother’s care.”[15] She went on to say that “the father’s presentation overall, and view of the level of collusion by the Police, [the wife] and the ICL, to sabotage his relationship with the children was of a great concern.” She said the husband presented as “completely unable to consider, or move forward in any way, until he is satisfied that [the wife] is in his view, correctly and specifically diagnosed with a personality disorder”.[16]
[15] Ibid third dot point.
[16] Ibid.
The Family Consultant said she had “serious concerns about the children spending any time with [the husband] based on his presentation, his views of [the wife], his views of the children, and the children’s views and experience of their father.”
The Family Consultant recommended that the husband continue to engage in mental health counselling and support given the extent of his mental health history.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit of the children of having a meaningful relationship with both of the children's parents;
All of the evidence is of a close, loving and supportive relationship between the children and the wife. The relationship between the husband and the children is fractured and with no direct contact since separation, save for the interviews for the preparation of the Family Report and the CICM.
The crux of the husband’s case is to enable him to re-establish his relationship with the children by them living with him and there being a moratorium on the children’s time with the wife for a period of six months.
It is well established that there must be a benefit to the children in their relationship with a parent and that this consideration is not of itself determinative of the consideration of children’s best interests.[17] Rather this is but one factor for consideration amongst many others which are weighed and balanced towards an order which is in the children’s best interests.
Section 60CC(2)(b) the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
[17] Champness & Hanson [2009] FamCAFC 96.
This is the crux of the wife’s case and that of the ICL. As is common, there is a balancing task for the Court between this consideration and that at s 60CC(2)(a) in respect of meaningful relationships. Significantly, Parliament has decreed that the Court “should give greater weight” to the protective considerations over those at subsection (2)(a).
The wife alleges a current and historical risk to the children and herself from the husband's propensity for violence of physical, emotional, and coercive types.
The children’s narratives to the Court Expert are highly suggestive of them being both subjected to and exposed to family violence.
The husband gives blanket denials to the allegations against him but where his own demeanour in Court gives some lie to those denials.
The wife’s affidavit material is replete with what she says is a consistent history of violence and abuse. Her evidence is consistent with her narrative to Dr R. Her evidence in this regard withstood vigorous cross-examination. Whist she presents as angry and bitter towards the husband, her allegations were particularised as to time and place and were made with a “ring of truth”. To the contrary the husband’s denials of family violence did not sit comfortably with the historical empirical evidence of the conflictual relationship between the parents and the children’s corroborative statements. In cross-examination his tendency was to deflect and avoid rather than confront the allegations. His own admissions as to recording the wife and children are demonstrative of his suspicious and controlling demeanour. I generally accept the wife’s allegations of family violence perpetrated on her and the children by the husband albeit where I have little doubt that her own assertive personality would be provocative. Further, the comments of Z to the Court Expert give some credence to the husband’s allegations that the children have been imbued with the wife’s negative views of the husband and I expect her nature is to express those views and where such unacceptable behaviour is well labelled as abusive.
Section 60CC(3)(a) any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks relevant to the weight it should give to the children's views;
X, Y and Z are now 16, 14 and nine years of age respectively. Each of them express their views informed by their experiences but where the wife has in my view, made her own opinions known to the children. Each of the children is negative in respect of the prospects of a relationship with their father. Their support is from and with their mother.
Section 60CC(3)(b) the nature of the relationship of the children with:
(i) each of the children's parents; and
(ii) other persons (including any grandparent or other relative of the children);
The relationship between the parents remains toxic, suspicious, and mutually critical. I can see little or no prospect of improvement. The children’s relationships are informed by their experiences of and with their parents.
Section 60CC(3)(c) the extent to which each of the children's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about long – term issues in relation to the children; and
(ii) to spend time with the children;
(iii) to communicate with the children; and
Section 60CC(3)(ca) the extent to which each of the children’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the children;
The husband has delegated financial support of the children to the wife and yet criticises her for going to work. I am not satisfied that he does not have the capacity for employment. His financial support since separation has been nominal. The husband is complicit in not having a relationship with them where he blames the AVO’s but in my view does so disingenuously where he sees this as an opportunity for him to be the victim. His comments to X at the Family Report interviews validate my observations.
Section 60CC(3)(d) the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from:
(i) either of their parents or
(ii) any other children, or other person ( including any grandparent or other relative of the children) with whom the children have been living;
Should the children commence a relationship with their father and/or his family then there is the strongest likelihood of further adult conflict with the children being involved or exposed. As indicated by Dr R only acknowledgment and change by the husband and his own mother will prevent further distress for these children of a relationship with their father. I saw no indications by the husband of any change of viewpoint or acknowledgment of his own failing.
Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(f) the capacity of:
(i) each of the children’s parents; and
(ii) any other person (including grandparent or other relative of the children)
to provide for the needs of the children, including emotional and intellectual needs;
The wife has a demonstrated capacity to care for her children’s needs. She is their emotional and financial support. She has taken this role for five years. Nevertheless she too has some failings. Her insight is lacking in respect of her tendency to make the children aware of her own critical and antagonistic opinion of the husband. Her explanation as to showing at least one, and probably two, of the children a television report of a father throwing a child of a bridge were unnecessary, provocative, naïve, self-interested or completely misunderstanding the delicate psyche of young children negotiating the stresses of their parents’ separation.
Any evidentiary analysis of the husband’s parenting capacity is unknown. He has not parented these children in any capacity for five years – a considerable period in the life of any child. His temperament is complex in its anger and frustration. His boundaries are blurred. He does not accept responsibility. He deflects and blames. His anger can manifest even when under the scrutiny of court proceedings. My impressions were of a man not willing to be honest with himself let alone with the Court. His understanding of the emotions of children is sadly lacking as evidenced by his conversations with the children during Family Report interviews.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the court thinks are relevant;
These three children should be able to enjoy the diverse background and culture of both their extended families. The lack of any cooperative parenting relationship is sadly to deny them at least one of these benefits.
Section 60CC(3)(h) if the children are Aboriginal children or Torres Strait Islander children:
(i) the children’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
Section 60CC(3)(i) the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents;
As indicated and detailed in these Reasons each of these parents is culpable to some degree in respect of their attitudes to the responsibilities of parenting.
Section 60CC(3)(J) and (k) – any family violence involving the children or a member of the children's family, and whether any family violence order applies;
These matters have been discussed elsewhere in the Reasons.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children;
The orders sought by the wife are in accordance with the children’s views. The children themselves express satisfaction with the relative peace in their lives. The husband’s proposed orders, contrary to the children’s views is highly likely to lead to emotionally charged actions and responses and hence to further litigation.
Any other fact or circumstance that the court thinks is relevant.
This is not a relevant consideration in these proceedings.
FINDINGS AND CONCLUSIONS - PARENTING
I find the children's primary source of support and dependency to be their mother. She has taken on the responsibility for actual and financial support of the children now for some five years. Save and except some propensity to imbue the children with her negative views of their father, she has been an admirable, hard-working and successful parent.
I find the husband's criticisms of the wife's parenting to be unjustified and indicative of his own self-centred personality and portraying himself as a “victim”. His lack of financial support for his children is telling. Absent any medical evidence in proper form, I am not satisfied that the husband has no capacity for employment. I do not accept that he was denied a relationship with his children by the wife or by any AVO where application for amendment and conditions is easily made but where I prefer that his failure to pursue a relationship with his children is a further example of his portrayal as a victim and a further tool with which to criticise the wife. To this end, I find the husband to be self-interested as against child focused.
I find the husband has been the perpetrator of family violence to the wife and the children. I place considerable weight on the narrative provided by the children to Dr R over two separate reports as corroboration of the wife's allegations against the husband. Further, the husband showed in this Court his propensity for spontaneous manifestation of his anger and violent demeanour. The wife's own nature might be provocative but where this gives him only reason and not excuse for his behaviour. Where the husband offers only blanket denials to the allegations of family violence, I prefer the particularised and corroborated evidence of the wife. I find that the violence has been of physical, verbal, coercive and controlling types and perpetrated on both the wife and the children and where the children have been exposed to violence between the parents.
I find the children's views to be informed, independent, entrenched and reasoned in them not wanting any form of relationship with their father. Whilst the wife may have influenced these views to a degree, consistent with her own experiences of the husband, I accept and agree with the opinion of Dr R that the children's views are predominantly informed by their lived experiences.
Where I find that the wife has demonstrable capacity to attend to the children's needs (subject to my criticism above), I find that the husband has no demonstrated capacity. Further, on the evidence, most notably from the husband himself, I am unable to find that he has the necessary prerequisites of empathy, child focus, objectivity, and/or insight to give confidence that he can develop those capacities to attend to his children's needs and most notably their emotional needs. The nature and content of his discussions with the children during the Family Reports demonstrates his lack of insight and understanding into the needs of children.
I find that the children are, on the evidence, comfortable and happy in their current lives and show no detriment or damage from not experiencing a relationship with their father. To the contrary, to reintroduce a relationship between the children and the husband is highly likely to lead to further dispute and perhaps family violence including for the children actually or by exposure where the husband shows no understanding of boundaries in his conversations with them even where under the scrutiny of the Court Expert.
I find that these family law proceedings have not benefited the husband as to him acknowledging or addressing his own parental failures. In the witness box he continued to deflect and blame the wife. His obvious focus on his perceptions of injustice to him through the ADVO proceedings dominates his thinking over and above any understanding of his children's needs.
Where the children have gained a degree of comfort, order and safety in their lives and respite from their previous experiences, and where their wishes should be given considerable weight, I can see no benefit in the children resuming a relationship of direct contact or communication with their father. They are of an age where they are aware of their identities and indeed of ages (where X is now 16 and Y 14 years) that I expect they could express their views even if contrary to those of their mother and where they might indeed decide to re-establish relationships with their father on their own terms and outside the jurisdiction of this Court where, for example, X will be an adult in some 18 months.
I do not accept the husband’s proposal that the Court should treat Z differently than her siblings given that she is just nine years of age. Firstly, the evidence and, particularly that of the Court Expert, satisfies me that Z is very much a part of a sibling unit with X and Y. She gleans support and safety in those relationships. Secondly, any different treatment of Z in the wife's household gives potential for conflict and particularly where the husband has shown a propensity to overly indoctrinate the children with his own complaints and feelings of victimisation. Thirdly, I have found that the husband has no demonstrated capacity to attend to the children's needs where such capacity would be necessary on his proposal of the children living with him for a period with a moratorium of the children's time with their mother.
Whilst I accept the view that the crux of many parenting matters before these Courts involves a balance of the considerations of s 60CC(2)(a) and (b) being the balance between providing children with meaningful relationships with their parents whilst protecting them from violence, abuse or risk thereof, and where the Court is well apprised of the tools available, such as supervision, to mitigate such risks, I cannot in this case arrive at any such balance or be able to mitigate the risks posed by the husband’s anger, aggression, and lack of boundaries in his discussions with the children. In my view the husband continues to present as a risk to the children both physically and emotionally. I am able to rely on my own observations of the husband's “meltdown” and manifest threatening behaviour in court during cross-examination.
Supervision is not viable in its limitations as to time or given the ages of the children and where, in any event, I could not be confident that the husband would not, even under the scrutiny of supervision, continue to emotionally abuse the children by continuing to voice his complaints against their mother and his own feelings of persecution and victimisation.
Generally, I find merit in Dr R’s opinion that any relationship between the children and the husband must first be premised on the husband acknowledging and addressing the difficulties and failings in his own sense of victimisation, propensity to blame the wife, and insight into the children’s needs.
It follows, therefore, on my findings of family violence and a toxic parental relationship that the wife should have the benefit of an order for sole parental responsibility and that the children continue to live with her. There will be no order for either time–with or communication between the children and their father but noting again that the older two children are of ages where they will be able to voice any changes in their views and where, consistent with X’s statement to the Court Expert, I am confident that the mother would respect such views even if contrary to her own and I will allow for time if agreed between the parents. As articulated above, I do not find it is in the best interests of these children to have an order for time to be framed in terms of “in accordance with the children’s wishes”.
THE RELEVANT LAW – SECTION 79
Section 79 of the Act provides for the settlement or alteration of parties’ interests in property where at subsection (1) it is provided that “the court may make such order as it considers appropriate” thereby giving a broad discretion but one which must be exercised within the statutory parameters. The High Court observed in Re Watson; Ex parte Armstrong[18] as follows:
… The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down. …
[18] (1976) 136 CLR 248 at 257.
Section 79(2) provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Whereas there had previously evolved a process for trial judges in considering alteration of property interests on a structured “four step basis”,[19] the High Court in Stanford v Stanford[20] reviewed that process emphasising the requirement at s 79(2) of an independent determination on the particular circumstances of the case as to whether it be just and equitable to make any orders at all altering those property interests with a warning that the consideration is not one to be simply conflated with the consideration of the contributions and other factors set out in s 79(4). The High Court assisted by setting out three fundamental propositions that should not be obscured:
[37]First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing (emphasis added) legal and equitable interests of the parties in the property. So much follows from the text of s 79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (original emphasis). The question posed by s 79(2) is thus whether, having regard to those existing (emphasis added) interests, the court is satisfied that it is just and equitable to make a property settlement order.
[38]Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. …
…
[40]Thirdly, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down".[21] To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[19] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143.
[20] (2012) 247 CLR 108.
[21] Footnote omitted.
In this matter the parties are separated and no longer share a joint residence. The property pool consists of real property (registered in the joint names of the parties where they each assert a contribution) and other assets. There are also liabilities. Each of the parties mounts an argument to their differing actual and potential earning capacity. Neither party argues against the Court altering the various property interests. Each of the parties argues that the other has had the benefit of assets including cash that should be “added back” to the pool. Consequently, in these circumstance where the marriage is at an end and where each of the parties claim a contribution to the assets then I consider it is just, equitable and appropriate to enter into a consideration of altering the parties’ property interests.
The Court is to deal with the property of the parties or either of them. Property comprises assets and liabilities. By reason of amendments to the Act, superannuation is to be “treated as property” although obviously often not capable of crystallisation in the sense of a tangible asset. A “financial resource” might not be capable of being subject to an order under s 79 but can be considered within the discretion of the Court in respect of the distribution of tangible assets.
The Act itself and its Rules obligate parties to make full disclosure of their financial positions in respect of assets, liabilities, and financial resources.[22]
[22] In the Marriage of Suiker& Suiker (1993) FLC 92–436 and In the marriage of Weir & Weir (1993) FLC 92–338.
The Court is to attribute value to the elements of the property pool and hence to the pool itself. In the matter now before me, it is not argued that the Court should consider the property pool other than on an “in globo” basis as is the more common process rather than the alternative of an “asset–by–asset” approach.[23]
[23] Norbis v Norbis (1986) 161 CLR 513.
The date for ascertaining the contents and value of the property pool is usually the date of the trial.
The Court then considers the contributions of the parties to the acquisition, maintenance, or improvement of the property pool. Contributions may be of a direct or indirect financial type or by non–financial contributions including as a homemaker or parent.
After attributing weight to the various contributions of the parties, the Court then considers the matters at s 79(4)(d)–(g) including any relevant factors under s 75(2) of the Act and hence whether there should be any further adjustment to either of the parties.
THE WIFE’S CASE
The wife argues that there should be “add–backs” to the property pool for monies received and used by the husband since separation and specifically from four sources being:
(i) Funds transferred out of husband's NAB account No…55 described as 'loan repayment' $41,000 (ii) Q Company payment received by the husband on 26 July 2019 and transferred out of the NAB account No…55 $45,176 (iii) Funds accessed by husband from children's bank accounts $22,000 (iv) Cash payment to the husband by the wife from drawdown $50,000 Total $158,176
The wife argues that she should receive a loading of 15 per cent on account of her superior contributions including a ‘Kennon'[24] type argument that her contributions were made more arduous by reason of the husband's family violence perpetrated on her in the form of physical, controlling and coercive psychological abuse and, secondly, by her superior post-separation contributions highlighted by her care and financial support of the children. She proposes a 65/35 per cent distribution of the net pool after consideration of contributions.
[24] (1997) FLC 92-757.
The wife then argues for a further 10 per cent adjustment to her by reason of the considerations at s 79 (4)(d)–(g) and including s 75(2) factors where she will have the continuing responsibility for the support of the children, actual and financial, but where she says that the husband has an earning capacity roughly equivalent to her own. The wife therefore seeks a distribution of the net property pool, inclusive of superannuation, as to 75 per cent to her and 25 per cent to the husband.
THE HUSBAND’S CASE
The husband says that there should be no add-backs to the property pool for monies received by him since separation. He says that the wife confuses the sum of $41,000 as being separate from the $50,000 paid to him by the wife pursuant to interim orders where the $50,000 was, in fact, the primary source of the payments out of $41,000 from his account. He otherwise argues that the monies were reasonably spent on living expenses. He says that the $22,000 removed from the children's bank account was used to reduce a joint liability.
The husband says that he was in a slightly superior financial position than the wife as at the commencement of the relationship but that no weight should be given to that discrepancy given the flux of time.
The husband says that the property pool should be adjusted after consideration of all contributions as to 55 per cent to the wife and 45 per cent to himself with a concession as to the wife’s superior post-separation contributions.
The husband's says that consideration of the current and likely future income discrepancy, compounded by his health issues, but set–off against the wife's primary care of the children (if the Court were to make such orders) would result in no further adjustment to either party on account of the s 75(2) considerations and thereby giving an overall distribution of the net property pool as to 55 per cent to the wife and 45 per cent to himself.
Both parties argue for a “one–pool” approach with the Court considering superannuation entitlements together with tangible assets and liabilities.
THE PROPERTY POOL – ADD-BACKS
The first task for a court in determining settlement of a property claim is to establish the pool at value where the High Court in Stanford & Stanford (supra) re-iterated that the date of the trial is usually the appropriate point of establishing that period. However, where the wife here asks for “add – backs” to the pool for monies or assets disposed of by the husband since separation then there is prima facie conflict with established principle. There has been important and recent jurisprudence in respect of add–backs since the confirmatory comments by the High Court in Stanford which leads me to be comfortably satisfied that a discretion remains in the Court to consider and deal with premature allocations, disposals and/or expenditures from the property pool by a party and to do so either by way of “add-back” or consideration pursuant to s 75(2)(o) of the Act.
The Full Court in Trevi & Trevi[25] helpfully provided an historical summary and comment in respect of add–backs at as follows:
[25] [2018] FamCAFC 173.
(a) Dissipation of property and expenditure other than on legal fees
[27]The Full Court held in Omacini and Omacini[26] that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.[27]
[28]However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”.[28] An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.[29]
[29]The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it”[30] at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation.[31] Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
[30]Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.[32]
[26] (2005) FLC 93-218.
[27] Kowaliw and Kowaliw (1981) FLC 91-092; Townsend and Townsend (1995) FLC 92-569.
[28] Footnote omitted.
[29] Cerini & Cerini [1998] FamCA 143 at [46].
[30] Footnote omitted.
[31] Ibid.
[32] Ibid.
Significantly the wife appears to concede that the payment made post-separation to the husband of $50,000 should not be added back where she accepts this amount is explained as “reasonable living expenses”. The $50,000 was paid to the husband pursuant to an interim order made contemporaneously with an order for the wife to have sole occupation of the former matrimonial home. I will not, therefore, add the sum of $50,000 back to the pool.
The wife says that the husband withdrew $22,000 from the children's bank accounts. He did so in about 2016. The thrust of wife's evidence in her own affidavit is, however, that these monies were deposited into a joint mortgage account. In those circumstances it is not proper to make an add–back.
The husband also transferred post–separation some $41,000 from his NAB account. He undoubtedly did so. He says that the transfers were made to his parents in various amounts usually of $5,000. He says this was for “repayment of loans made to him for legal and living expenses”. Without further explanation these payments might attract consideration as add-backs. The husband, however, says that the amount of $41,000 is a part of the $50,000 which the wife concedes should not be added back. Although there is no distinction made by the husband or any precise accounting in respect of what were “living” expenses or “legal” expenses, but without further contrary specific evidence, I accept the husband's contention as the best evidence and will not make an add-back.
The husband received a redundancy or similar payment from his former employer Q Company in July 2019 in a quantum of $45,176. He again gives a bald explanation as to “repayment of loans from his parents for legal and living expenses”. Where the other above-mentioned payment to his parents cover this rationale I cannot accept such a bald statement as being “reasonable expenditure”. This was a precise amount received by the husband post separation. It relates directly to the husband's employment during the marriage. He had the sole use of those monies. There is no evidence of benefit to the wife and the children. He concedes some expenditure on legal expenses (as indeed he does from the $41,000). Consequently, where he provides no better particularisation there will be an add-back of $45,176 to the property pool.
The property pool has been otherwise narrowed or agreed in areas of dispute. The husband initially claimed an asserted liability by him to his parents of a post–separation loan of $55,000 as a debt of the marriage. Without benefit to the wife or children, I cannot accept this contention. Again, there is no evidence of a formal loan. There is no evidence of terms of repayment.
Secondly, the husband claims his outstanding liability of $25,000 to the Child Support Agency as a joint matrimonial debt. This is simply irrational, disingenuous and obviously not a debt to which the wife should be required to contribute.
The husband claims a $2,000 liability of a “[CC Limited] debt”. This appears to be a variable facility with the only evidence being of his liability of January 2022 being long after separation. He has since had the benefit of substantial funds. He particularises no benefit to the wife and children. The debt will not be included as a liability of the marriage.
Finally, in her balance sheet provided in written closing submissions[33] of her counsel, the wife argues for inclusion of as an “asset” the sum of $50,000 paid to the husband by court order contemporaneously with orders for her to enjoy sole occupancy of the former matrimonial home and is detailed above. I do not accept this submission where in those same written submissions the wife's counsel submits at [2]:
The court would accept that the wife had use of $50,000 draw down on the mortgage used to pay the husband in the post separation period, but none would be added back as the husband asserted all was used to live on.
[33] Filed 6 May 2022.
Consequently, I find the property pool for the purposes of the s 79 considerations to comprise of the following:
The assett pool
Ownership Description Value 1 Joint DD Place, Suburb C $2,000,000 2 Wife D Bank Account ending No…69 $290 10 Wife Motor Vehicle 1 $5,000 11 Wife Home contents $1,000 12 Husband NAB Bank Account ending No…55 Minimal 13 Husband NAB Bank Account ending No…04 Minimal 14 Husband ANZ Bank account (number not provided) Minimal 15 Husband Q Company $960 16 Husband Q Company Redundancy/payment $45,176 TOTAL $2,052,426
SUPERANNUATION Wife - Superannuation Fund 3 $197,000 Husband – Superannuation Fund 1 $213,144 Husband – Superannuation Fund 2 $740 TOTAL $410,884
LIABILITIES Suburb C property $196,674.80 Second Mortgage Suburb C property $41,348 TOTAL $238,022.80
TOTAL ASSETS LESS LIABILITIES Total Assets including superannuation $2,463,310 Total Liabilities ($238,022.80) TOTAL NET ASSETS $2,225,287.20
The wife's balance sheet provided in her counsel’s final address references motor vehicles in the possession of the husband with estimated values. The husband's financial statement sworn 25 February 2022 discloses no such motor vehicles in his possession. I have been unable to reference any specific evidence otherwise by either evidence in chief or cross-examination in respective of this issue. If the husband did have motor vehicles and disposed of them since separation then I have no specific evidence. In all those circumstances I will not include the motor vehicles in the balance sheet.
CONTRIBUTIONS
The evidence of both parties is vague and uncertain as to their respective financial positions as at the date of commencement of cohabitation in 2003 but perhaps understandable given the flux of time and the subsequent purchases and sales of real estate. As best as I can decipher, the husband had some equity in a property at Suburb N of about $50,000. He owned a motor vehicle and claims to have had superannuation and savings but where the evidence in respect of each is unparticularised and uncorroborated.
The wife's evidence as to having proceeds of sale of a City M property of $170,000 is uncorroborated and where her attempted corroboration does not assist. I accept that she too had some $51,000 in one account at the time of commencement of cohabitation and that she also owned a motor vehicle and had some superannuation. However, the parties agree that the wife contributed $100,000 to their joint purchaser of a property at J Street, Suburb K. As such, I am prepared to find on the evidence available to me and on the balance of probabilities that the wife had at least double the wealth of the husband as at the date of commencement of cohabitation. Such a discrepancy must be seen, however, within the context of the myriad of contributions by and on behalf of the parties during this lengthy relationship.
During the marriage both parties were substantially employed. There are three children of the marriage with varying contributions as homemaker and parent including support from the husband's parents in caring for the children and thereby enabling the parties to pursue their employment. The parties purchased and sold real estate during the marriage. In an holistic sense, therefore, I am comfortably satisfied that the parties contributed equally during the course of the relationship.
Post separation the wife has had the sole responsibility for the care and effectively the financial support of the three children including the payment of the school fees for X in a quantum of $8,000 per annum. The parties have now been separated for more than five years. The husband's child support assessment sits at $17.20 per fortnight. He is some $25,000 in arrears which in itself gives a realistic indication of the extent of the wife's financial support during this five year plus period. This is a considerable and important contribution by the wife post separation and must be seen with within the context of the net value of the property pool at E$2,225,000. Consequently, taking into account the length of the relationship, the superior financial contributions of the wife at the commencement of that relationship, and the overwhelming contributions of the wife over five years post–separation, I find that the property pool should be adjusted on account of contributions as to 65 per cent to the wife and 35 per cent to the husband.
SECTION 79(4)(d) –(g) AND – SECTION 75(2) FACTORS
By reason of the these orders, the wife will continue to have the primary responsibility for the support of the children and in this respect the youngest, Z, is just nine years of age. Given the husband's history in respect of accruing child support arrears and minimal contribution to the children's financial support, this responsibility might reasonably be expected to continue to fall on the wife's shoulders.
The wife remains in employment as indeed is necessary given her financial responsibilities for the children. This obviously places greater strain on her obligations as parent and homemaker.
The husband continues to receive accommodation support from his parents. He does not work. Having had, however, the benefit of seeing and hearing the husband in the witness box together with evidence as to his work history and skills, I am not satisfied that the husband has no capacity for employment. The husband is just 42 years of age. He holds professional qualifications. Although he apparently receives medical and psychological assistance for what he claims to be concentration, depression, anxiety and panic attack issues “as a result of this separation and these ongoing proceedings”, there is no medical evidence of sufficient probity to satisfy me that he is unable to pursue employment in his field. In any event, on the husband's own evidence, the alleged causal factors for his conditions will soon be alleviated by these Reasons and orders.
The wife at both the commencement and conclusion of these proceedings agitated for just a 10 per cent further adjustment in her favour on account of the relevant s 75(2) factors. Although I am not bound by the options put to me by each of the parties, I find such adjustment to be very much at the lower and conservative end given the matters set out above. In the circumstances of the adjustment made on account of contributions, however, I will accept the submissions of the wife's legal representatives accordingly and there will be a further adjustment of 10 per cent from the property pool to the wife.
The property pool will therefore be adjusted as to 75 per of net value to the wife and 25 per cent of net value to the husband. I note the balance of the parties’ superannuation entitlements. Given the length of the relationship together with my findings as to contributions and s 75(2) factors, I accept the position of the parties that my consideration be on a “one pool basis” inclusive of superannuation together with tangible assets and liabilities.
Where I find, on the evidence before me, the net property pool to have a value of $2,225,287.20 then the wife has an entitlement of value of $1,668,965.40 and the husband $556,321.80. However, the ultimate cash payment to the parties, of course, is dependent upon the sale price of the Suburb C property.
I certify that the preceding two hundred and thirty-two (232) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mcguire. Associate:
Dated: 26 August 2022
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