PHITZNER & HOLLAS
[2014] FamCA 344
FAMILY COURT OF AUSTRALIA
| PHITZNER & HOLLAS | [2014] FamCA 344 |
| FAMILY LAW – EVIDENCE – where father facing serious criminal charges – whether appropriate to grant certificate pursuant to s 128 of the Evidence Act 1995 (Cth). FAMILY LAW – CHILDREN – Final Orders – where mother alleges significant and sustained physical and sexual abuse against both herself and the children – where father denies allegations – where children have been repeatedly interviewed at the mother’s insistence – children have lived with mother since separation – children only recently recommenced spending time with their father – where evidence does not support a finding that the father poses an unacceptable risk to the children - whether mother’s repeated attempts to involve social workers, psychologists and government agencies also a risk to the children – family consultant supportive of the children’s relationship with the father – best interests of the children – meaningful relationship with both parents - orders made for the children to live with the mother and spend time with the father. FAMILY LAW – PROPERTY – Final Orders – de facto – modest asset pool - where father provided greater financial contribution both prior to and during the relationship – where mother fulfilled homemaker role – father to retain 60 per cent and mother to retain 40 per cent of assets. |
Family Law Act 1975 (Cth) s 4, 60CC, 61DA, 65DA, 65DAA, 68P, 69ZN, 69ZT, 90SM, 90SF
Evidence Act 1995 (Cth) s 128, 140
Baglio & Baglio [2013] FamCA 105
Bevan & Bevan [2013] FamCAFC 116
Briginshaw v Briginshaw (1938) 60 CLR 336
Cornwell v R (2006) 198 FLR 406; [2006] NSWCCA 116
Ferrall & McTaggart (2000) FLC 93-054
Hickey & Hickey & Attorney General for Commonwealth of Australia (2003) FLC 93-143
M & M (1988) 166 CLR 69
Maluka & Maluka (2007) FLC 93-464
Maluka & Maluka [2012] FamCA 373
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Meiko Australian Pacific Pty Ltd v Adam Samuel Hinchcliff [2009] NSWSC 354
MRR & GR (2010) 240 CLR 461
Neate Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Stanford v Stanford (2012) 247 CLR 108
Watson & Ling (2013) 49 Fam LR 303
| APPLICANT: | Mr Phitzner |
| RESPONDENT: | Ms Hollas |
| INDEPENDENT CHILDREN’S LAWYER: | Mr R Seymour |
| FILE NUMBER: | ADC | 4259 | of | 2012 |
| DATE DELIVERED: | 28 May 2014 |
| PLACE DELIVERED: | 28 May 2014 |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 17, 18, 19, 20, 21, 24, 25, 26, 27, 28 February 2014 and 7 April 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dickson |
| SOLICITOR FOR THE APPLICANT: | Tindall Gask Bentley |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson 17 – 28 February 2014: Litigant in person 7 April 2014 |
| SOLICITOR FOR THE RESPONDENT: | Harry Alevisos Solicitor 17 – 28 February 2014: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Childs |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That the parties do have equal shared parental responsibility for the children W PHITZNER born … 2004 (“W”), J PHITZNER born … 2006 (“J”), Y PHITZNER born … 2007 (“Y”) and Z PHITZNER born … 2009 (“Z”).
That the children live with the mother.
That the children live with the father as follows:-
(a)Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday;
(b)For one half of all school holidays with the last day of the school term to be designated the first day of the school holidays and the Saturday immediately prior to the commencement of the new school term to be designated as the last day of the said school holidays;
(c)On such other special occasions at times to be agreed;
(d)At such other times as may be agreed between the parties.
That paragraph 3 (a) herein shall be suspended during all periods of school holidays.
That the parties spend additional time with the children on special occasions as follows:-
(a)That the mother have the care of the children from 3.30pm 24 December 2014 until 3.30pm 25 December 2014 and in each alternate year thereafter;
(b)That the father have the care of the children from 3.30pm 25 December 2014until 3.30pm 26 December 2014 and in each alternate year thereafter;
(c)That the mother have the care of the children from 3.30pm 25 December 2015 until 3.30pm 26 December 2015 and in each alternate year thereafter;
(d)That the father have the care of the children from 3.30pm on 24 December 2014 until 3.30pm on 25 December 2015 and each alternate year thereafter.
(e)That the mother have the care of the children from 9am Good Friday until 5.30pm Easter Monday in 2015 and in each alternate year thereafter;
(f)That the father have the care of the children from 9am Good Friday until 5.30pm Easter Monday in 2016 and in each alternate year thereafter;
(g)That the mother have the care of the children on Mother’s Day in each year between 9am and 5pm AND if the children are with the father on that weekend THEN his time shall be suspended;
(h)That the father have the care of the children on Father’s Day in each year between 9am and 5pm AND if the children are with the mother on that weekend THEN her time shall be suspended.
That handovers do occur as follows:-
(a)At the children’s school in the event that the time the children are to spend with each of the parties commence or conclude at the beginning or the end of each school day;
(b)Inside the Wakefield Street Police Station in the event that the time the children are to spend with either party commences or concludes on a non-school day or at a time other than at the beginning or end of the school day;
That the parties have unfetted access to the school at which the children attend and be at liberty to obtain at their own expense copies of school reports, school newsletters and school photographs of any school or educational institution at which the children may from time to time be enrolled.
That the parties be at liberty to attend all school and sporting events and any other events that the parties would ordinarily attend.
That in the event of a medical emergency the informed party do advise the uninformed party as soon as possible of all details relating to the emergency and allow that party unrestricted time with the child whilst the child recovers.
That the mother be restrained and an injunction granted restraining her from facilitating the children’s attendance upon any psychologist, social worker, counsellor (or any agency employing such health professional) or psychiatrist without the prior written consent of the father.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
That in full and final settlement of any claim that either party may have against the other for settlement of property or alteration of interests in property pursuant to Part VII AB of the Family Law Act 1975 (as amended):-
(a)That on or before the elapse of three (3) calendar months from the date of this order the father do pay to the mother the settlement sum of ONE HUNDRED AND NINETEEN THOUSAND AND SIX DOLLARS ($119,006);
(b)The father shall cause to be discharged the mortgage secured against the Suburb A property and shall pay to the exoneration of the mother any arrears under such mortgage and or rates, taxes, insurance premiums and other outgoings in relation to the Suburb A property and shall thereafter hold the mother safe and indemnified in respect of the same;
(c)That the father shall cause to be discharged the outstanding mortgage balance outstanding to Bank SA in relation to the B property shortfall to the exoneration of the mother AND shall thereafter hold the mother safe and indemnified in respect of same;
(d)That the parties will do all things necessary to effect the sale of the property situate at Town N in the State of South Australia as contained in Certificate of Title Volume … Folio … with the sale proceeds to be applied as follows:-
(i)In discharge of the mortgage secured against the said property;
(ii)In payment of any sales agency costs including fees, marketing and sales agent commission; and
(iii)The net balance then remaining (if any) be divided as to 60 per cent to the father and 40 per cent to the mother PROVIDED THAT if there be a shortfall following the sale of the said property THEN the father shall pay same and hold the mother safe and indemnified in respect of any residual liability.
That the mother do forthwith return to the father his … watch collection.
That the parties shall otherwise retain all of their property in their possession free from any claim from the other including their superannuation entitlements.
That each party shall do all things and sign all such necessary documents to give effect to the terms of this order.
That each party do release the other party from any liability for any claim that either one may have against the other AND the parties do discharge their several debts and liabilities without calling upon the other to contribute (including any income tax liability assessed in their respective names) AND the father and the mother agree that neither of them will hereafter pledge the credit of the other.
That in default of any of the following:-
(a)The payment of the said settlement sum of ONE HUNDRED AND NINETEEN THOUSAND AND SIX DOLLARS ($119,006);
(b)The payment and discharge of the outstanding liability to Bank SA following the sale of the Town B property;
(c)The payment and discharge of any balance outstanding to Bank SA in respect of the Town N property
AND should such default continue for more than thirty (30) days THEN and in that case the property situate at Suburb A in the State of South Australia shall be forthwith placed on the market for sale by public auction or private treaty upon such terms and conditions as the parties may agree AND in default of agreement as orders by this Honourable Court AND following the payment out of the necessary costs of sale the net proceeds shall be used to firstly pay out the outstanding loans (if any) to Bank SA in respect of the B and N properties AND THEN the payment of the settlement sum outstanding to the mother together with default interest at the rate of 10 per centum (10%) per annum AND the balance if any to the father.
That until settlement of property and the father’s obligations pursuant to these orders have been finalised, the father be restrained and an injunction be granted restraining him from selling the property at Suburb A SAVE AND EXCEPT as may be necessary to fulfil the terms and conditions of this order.
That all matters be removed from the Active Pending List of Cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Phitzner & Hollas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: ADC 4259 of 2012
| Mr Phitzner |
Applicant
And
| Ms Hollas |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Initiating Application filed in the Federal Magistrates Court (as it then was) on 9 November 2012, Mr Phitzner (“the father”) sought parenting orders in respect of the children W born in 2004, J born in 2006, Y born in 2007 and Z born in 2009 (“the children”) and orders for property settlement following a relationship of disputed duration but on the father’s case about 10 years.
The father filed an Amended Initiating Application on 21 August 2013 which changed significantly the parenting orders sought by him in respect of the proposed living arrangements for the children, but the changes to the orders by way of settlement of property were less significant. The broad thrust of the parenting orders is as follows (my summary):-
·That the father have sole parental responsibility for the children.
·That the children live with the father.
·That the children spend time with the mother each alternate weekend from 7pm Friday to 6pm Sunday, for one half of all school holiday periods and at such other times as may be agreed.
·In the alternative to the above, the parties have equal shared parental responsibility for the children.
·The children live with the father each weekend that he is not required to work from the conclusion of school (or 3.30pm if not a school day) until the commencement of school on the following Monday (or 9am if not a school day).
·For half of short and long holidays at times to be agreed.
·The father also sought specific orders as to special occasions but in particular as to arrangements for the Christmas and Easter periods, Mother’s Day and Father’s Day.
·He sought orders that the property of the parties be divided as to 60 per cent to the father and 40 per cent to the mother.
·That the net superannuation assets of the relationship accumulated during the relationship be divided equally between the parties.
Whilst at trial the father maintained his primary order namely, seeking sole parental responsibility for the children and that they live primarily with him, an alternative but secondary position was that the children would spend five nights a fortnight in accordance with his roster namely, in week one for a period of three overnights and week two for a period of two overnights.
Ms Hollas (“the mother”) filed a Further Amended Response to the Initiating Application on 14 January 2014. The orders sought by the mother are as follows:-
·That the said children live with the mother who shall have the sole parental responsibility for them.
·That pending determination of the criminal investigations pertaining to the father, the father spend no time with (either supervised or unsupervised) or communicate with the said children.
·That in full and final settlement of all claims that either party may have against the mother for settlement of property, the wife/mother receive assets to the value of 65 per cent of the matrimonial assets and superannuation entitlements of the parties.
·That the husband/father do pay the wife/mother’s costs of and incidental to these proceedings.
The further Amended Response differs from the first filed Response in that the more recent document makes reference to criminal investigations that were pending at the time.
There was no significant difference in the orders sought by the mother as set out in the Case Outline document filed on 14 February 2014.
The parenting orders should be seen against the long history of litigation principally in respect of parenting issues.
On 13 November 2013 I made orders in the following terms which provide for the current arrangements in respect of the children:-
1.That the applicant father spend time with the children (named) under the supervision of the paternal grandmother [Mrs P] as follows:-
(a) As to the children [W], [J] and [Y]:-
(i) Each Saturday from 9am to 12 noon commencing 16 November 2013;
(ii) As and from 4 January 2014 each Saturday from 9am until 3pm;
(iii)On 25 December 2013 (Christmas Day) from 10am to 1pm;
(iv)At such other times as may be agreed between the parties and the Independent Children’s Lawyer in writing.
(b)As to the child [Z]:-
(i)From 16 November 2013 to 3 January 2014 subject to her wishes;
(ii)From 4 January 2014 in terms of paragraph 2 (a) hereof.
2.That unless otherwise agreed, handover for the purposes of the children spending time with their father shall be at the Wakefield Street Police Station.
The significance of this order is that it enabled time to be spent between the children and the father in circumstances where he had not had any contact with them since 27 June 2012 and continued by the order of Dawe J made 21 June 2013 which specifically made no provision for the children to spend any time with the father pending the final hearing
The trial commenced before me on 17 February 2014. The mother was represented by counsel as was the Independent Children’s Lawyer (“ICL”). On that day counsel for the mother made an application that the proceedings be adjourned. The basis of the application was that counsel had received the brief shortly prior to the hearing date and having considered the trial affidavit material to be relied upon by the mother, formed the view that it was wholly inadequate to properly present the case on her behalf. There was no suggestion of any contributory behaviour by either the father or the ICL but rather the mother’s solicitors had failed to discharge their professional obligations.
Following submissions, I refused the application for an adjournment but was prepared to hold the matter over until 18 February 2014 to enable further affidavit material to be presented on behalf of the mother.
In particular, the mother sought to expand her case by seeking to rely upon the evidence of her adult children, her daughter PP, her son MH and her daughter CH, a CAMHS clinician Ms V and a clinical psychologist Mr M. Whilst the mother did not present even a draft of the proposed affidavits, I was satisfied that the evidence likely to be adduced was potentially relevant and in the circumstances of the case, if that evidence could be presented without causing significant prejudice to the father and the ICL, then the preferred option was to retain the trial listing. As matters transpired, once the proceedings commenced I was able to accommodate the hearing of the evidence to its conclusion.
On 18 February 2014 the matter was still not ready to proceed but I made the following order:-
1.That the respondent [Ms Hollas] have leave to rely upon the further affidavit of the mother sworn 13 January 2014 and of [PP] sworn 14 February 2014.
On the basis of an assurance that a subpoena to give evidence would be complied with, I gave leave for a subpoena to issue to Ms V on 13 February 2014.
I also agreed for the evidence of the mother’s clinical psychologist Mr M to be given without the preparation of an affidavit.
Whilst clearly a significant accommodation was given to the mother, the objections of the father and the ICL were not strident in circumstances where any evidence that might place the father and the ICL at a disadvantaged could be remedied by allowing him to call evidence in rebuttal if necessary.
Accordingly, the father relied upon the following documents:-
(1)Amended Initiating Application filed 27 August 2013;
(2)Trial Affidavit filed 22 November 2013
(3)Financial Statement filed 22 November 2013;
(4)Further Trial Affidavit in Reply filed 30 January 2014;
(5)Affidavits of paternal grandmother Mrs P filed 20 January 2014 and 30 January 2014;
(6)Husband’s Application in a Case filed 20 January 2014 and Affidavit in support also filed 20 January 2014.
The mother relied upon the following documents:-
(1)Further Amended Response to Initiating Application filed 14 January 2014;
(2)Trial Affidavit of mother filed 14 January 2014;
(3)Further Trial Affidavit of mother filed 18 February 2014;
(4)Affidavit of mother’s son MH filed 19 February 2014;
(5)Affidavit of mother’s daughter CH filed 18 February 2014;
(6)Affidavit of mother’s daughter PP filed 18 February 2014;
(7)Evidence of Ms V, CAMHS clinician;
(8)Evidence of Mr M, clinical psychologist;
(9)Further Amended Financial Statement filed 14 January 2014.
It was common ground that the father had been reported to the police in relation to the following:-
· Four counts of aggravated assault on the child W;
· Two counts of aggravated assault on the mother’s son MH;
· Two counts of indecent assault on the mother’s daughter PP;
· Twenty counts of rape and five counts of aggravated assault on the mother.
There was a significant delay in the police taking any action in relation to the various complaints. Indeed, it was a matter raised by Dawe J in her reasons for judgment delivered 21 June 2013. At paragraph 16 of her Honour’s reasons the following is said:-
I am told by the Independent Children’s Lawyers’ counsel that the police investigations concerning the serious allegations about physical abuse of the child [W] by the father are still underway and may take six to twelve months to be concluded. It is of concern that these allegations have arisen some time ago and are yet still the subject of police investigation. It would not be appropriate for [W] to be required to spend time with the father, whether it is supervised or not whilst there are ongoing police investigations in relation to the allegations that are made concerning the possible abuse of [W] by the father.
When I heard the matter on 4 November 2013 there had not been any apparent progress in the criminal investigations and the extent of the disruption to the relationship between the father and the children arising from the uncertainty of whether the father would be formerly charged was becoming acute when the comments of Dr C in his report dated 2 November 2013 were considered.
Dr C reports as follows:-
On 28 October 2013 each of the three older children indicated during individual interviews a willingness to engage with the father during a period of observed interaction. The youngest child, [Z] (aged 4 years 8 months) did not agree to such a meeting. The three older children were reassured that there would be no emotional pressure placed on them and that I would be there to keep them safe and comfortable. They each indicated a preference to meet with the father without the other children being present.
Each of the ensuing interactions went very well, and there were no signs of distress in any of the children during or immediately after these periods. I conducted a brief interview with each child immediately following upon their resumption of connection with their father, to assess their attitude to ongoing contact. Each indicated pleasure at having seen their father after such a long time, and all three indicated a clear desire to see him again.
Dr C recommended “a transition back to a more normalised connection with the father”.
As if on the heel of the hunt, an Information and Summons was laid against the father which alleged multiple counts of rape and assault against the mother, two counts of indecent assault against PP, two counts of assault against MH and three counts of assault against the child W. The Information and Summons was tendered and marked as Exhibit 1 in the proceedings.
By oral application, counsel for the father sought a certificate be issued pursuant to Section 128 of the Evidence Act 1995 (“the Evidence Act”) to cover the evidence that the father would give at trial whether by way of affidavit, cross examination or evidence given in chief and in particular, evidence arising from the affidavit of the mother and her daughter PP.
The issue therefore is whether it is appropriate to grant a certificate in circumstances where the trial affidavit of the father has been filed and forms part of the Court record.
Section 128 provides as follows:-
(1)This Section applies if a witness objects to giving particular evidence or evidence on a particular matter, on the grounds that the evidence may tend to prove that the witness:-
(a)Had committed an offence against or arising under Australian law or a law of a foreign country; or
(b)Is liable to a civil penalty.
(2)The Court must determine whether or not there are reasonable grounds for the objection.
(3)If the Court determines there are reasonable grounds for the objection, the Court is to inform the witness:-
(a)That the witness need not give the evidence unless required by the Court to do so under sub-section (4); and
(b)That the Court will give a certificate under this section if:-
(i)The witness willingly gives the evidence without being required to do so under sub-section (4); or
(ii)The witness gives the evidence after being required to do so under sub-section (4); and
(iii)Of the effect of such a certificate.
In dealing with the New South Wales equivalent of the Evidence Act, Einstein J in the decision of Meiko Australian Pacific Pty Ltd v Adam Samuel Hinchcliff [2009] NSWSC 354 at paragraph 184-185 said:-
The terms of section 128 clearly contemplates that a certificate, if granted, is granted prior to the giving of evidence not to evidence which has already been given, particularly where no objection was taken.
To the extent that a certificate can issue after the giving of evidence, this may occur where the Court has ruled but not granted a certificate – Cornwell V R; RV Cornwell [2006] NSWCCA at paragraphs 87-94. A certificate in those proceedings concerned answers given to specific matters in cross examination:-
A retrospective application of Section 128 is unwieldy and is not contemplated by that section. It also undermines the purpose of the section which is to prevent witnesses from being coerced into giving evidence which tends to incriminate them. Once the evidence has been given it cannot be said that the witness has been compelled.
The matters set out in the affidavit material relied upon by the father are formally tendered to the Court when the witness is called to give his evidence. It is also the case that the issue of a certificate had been previously foreshadowed in circumstances where the possibility of criminal charges was a sword of Damocles over the proceedings.
In respect of a consideration as to whether to grant a certificate pursuant to Section 128 of the Evidence Act, I consider that the father should carry the burden of proof. It is an obligation that is to be discharged on the balance of probabilities namely, that there are reasonable grounds for him to object to give the evidence without the protection of a certificate.
Section 140 of the Evidence Act provides:-
(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 a Court may take into account in deciding whether it is so satisfied, it is to take into account:-
(a) The nature of the cause of action or defence; and
(b) The nature of the subject matter of the proceedings; and
(c) The gravity of the matters alleged.
In Neate Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 the Court said at page 170-171:-
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probability. That remains so even were the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved. Thus, authorative statements have been made to the effect that clear or cogent or strict proof is necessary (where so serious a matter as fraud is to be found). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probability, a party to civil litigation has been guilty of such conduct.
In Ferrall & McTaggart (2000) FLC 93-054 at paragraph 89-90 the Court concluded:-
[89]We think the trial judge was clearly correct in holding that it was within his discretion to grant such a certificate. Firstly, we think it would be unrealistic to limit the availability of a certificate to a situation where a witness is asked a particular question in cross examination. We think the availability of a certificate clearly applies to evidence given in chief, otherwise an inappropriate forensic advantage would rest with the other party who would be in a position to prevent the question of an objection arising by simply not seeking to cross examine.
[90]In the particular circumstances of the Family Court of Australia, evidence in chief is normally given by affidavit. We think that in the circumstance of the present case, the witness was objecting, in the sense required by Section 128 by indicating that he would not file the affidavit unless a certificate was given. We see this situation as no different from that which would have been the case if he had sworn in to answer questions concerning the matter in evidence in chief, and had objected to doing so without the issue of such a certificate.
In this particular case it is not a matter of speculation as to the possible use to which the evidence given by the father could be used. There is now an information laid against the father and the nature of the alleged offences are extremely serious.
The father has elected to proceed with the trial notwithstanding the charges are pending on the basis of his concern that the interests of the children are being adversely affected by the lack of any meaningful relationship with him.
The mother is not objecting to the proceedings being heard and does not speak against the father being granted a certificate. There is no objection on behalf of the ICL or any other interested third party.
I consider that the father is obliged to give answers and be cross examined in respect of allegations made by the mother which whilst involve her, her adult daughter and son and the child W nonetheless, are also matters relevant to the resolution of the respective applications of each of the parties as to the future arrangements for the children.
I considered that in all the circumstances it was proper for a certificate to issue in terms as so ordered.
As the trial progressed the mother also sought and was granted a certificate pursuant to Section 128 of the Evidence Act in relation to:-
(1)All evidence arising from the affidavit of the father sworn 22 November 2013 in so far as that affidavit relates to the date of commencement of cohabitation and/or a notification made to Centrelink identifying the date of cohabitation as 16 December 2001;
(2)All evidence arising from the affidavits of the mother sworn 13 January 2014 and 16 February 21014 in so far as those affidavits related to the date of commencement of cohabitation;
(3)The evidence given by the applicant father in so far as that evidence relates to the date of commencement of cohabitation and/or a notification made to Centrelink identifying the date of cohabitation as 16 December 2001; and
(4)The foreshadowed evidence to be given by the respondent mother in so far as that evidence relates to the date of commencement of cohabitation and/or a notification made to Centrelink identifying the date of cohabitation as 16 December 2001.
At the commencement of the proceedings I advised counsel that I was cognisant of the provisions of Section 69ZN of the Family Law Act 1975 (Cth) (“the Act”) namely:-
Section 69ZN (1) must give effect to the principles in this section:-
(a)In performing duties and exercising powers (whether under this division or otherwise) in relation to child related proceedings; and
(b)In making other decisions about the conduct of child related proceedings. Failure to do so does not invalidate the proceedings or any order made in them.
Section 69ZN (2)
Regard is to be had to the principles in interpreting this division.
Section 69ZN (3)
The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Section 69ZN (4)
The second principle is that the Court is to actively direct, control and manage the conduct of the proceedings.
Section 69ZN (5)
The third principle is that the proceedings are to be conducted in a way that will safeguard:-
(a)The child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) The parties to the proceedings against family violence.
Section 69ZN (6)
The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote co-operative and child focused parenting by the parties.
Section 69ZN (7)
The fifth principal is that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.
Because of the nature of the proceeding generally but in particular heightened by the detail of the allegations made against the father by the mother as set out in her trial affidavit filed 18 February 2014 and those of PP filed 18 February 2014 and MH filed 19 February 2014, it was necessary to give consideration to the application of Section 69ZT namely, whether the provisions of the Evidence Act should apply. Section 69ZT (3) requires that I be satisfied that the circumstances are exceptional and that I have regard to the following matters:-
(i)The importance of evidence in the proceedings; and
(ii)The nature of the subject matter of the proceedings; and
(iii)The probative value of the evidence; and
(iv)The power of the Court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
The mother clearly alleges that the father exhibited extreme physical and sexual assault and violence towards her and towards her children, but in particular her adult daughter. The mother further alleges that the father has anger management issues and is unable to control himself. Her case is that she was subjected to his rapacious sexual demands and whilst the broad allegation is that “she was raped on almost a daily basis”, at least to the extent of the matters now raised in the mother’s second trial affidavit and Exhibit 1 comprising the information setting out charges laid against the father, the mother seeks not just a finding of unacceptable risk but rather that there should be findings on the balance of probability that certain incidents as alleged by the mother, are proven.
The father denies the mother’s allegations and it is his case that she has concocted the allegations of sexual assault and family violence.
The Full Court in Maluka & Maluka (2007) FLC 93-464 gave consideration to the circumstances of the application of Section 69ZT in a case that involved allegations of family violence and sexual abuse. At paragraph 121 the Full Court considered the extent of judicial discretion in the application of the section and held:-
[121]Before us, it was submitted that where the subject matter of the hearing involved consideration of the determination of a child’s relationship with a parent, a trial judge might apply Section 69ZT (3) of the Act to the entire hearing. Whilst it was acknowledged the subsection is not expressed in mandatory terms, any other outcome was said to be erroneous.
The Full Court in Johnson v Page (2007) FLC 93-344 and Amador v Amador (2009) 43Fam LR 268 adopt a common approach to Section 69ZT namely, that the decision to apply subsection 3 is discretionary, which discretion is to be exercised in accordance with the factors contained therein…
[123]We do not accept the father’s argument that the effect of Section 69ZT is to establish a rule of general application but in cases where a Court is asked to terminate a child’s relationship with a parent, a judge would err if he or she failed to apply the rules of evidence excluded by Section 69ZT (1) of the Act to an issue or to the entire hearing. It must be remembered that it is not uncommon for such cases to involve, in effect, a risk assessment exercise which may not include consideration of whether to make positive findings of sexual abuse or consider conduct which would constitute criminal offences in the upper range of seriousness. There are sound reasons associated with the protection of children and victims why, notwithstanding that an order is sought terminating the child’s relationship with a parent, a judge might determine the risk issue by reference to Section 69ZT (1) and (2) of the Act.
In the rehearing of Maluka by Coleman J in Maluka & Maluka [2012] FamCA 373 his Honour said:-
[28]As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for Section 69ZT (1) is in the Court’s view, likely to be mischievous and not just for one party…
[32]It is a matter of significance within Section 69ZT (3) (a) (i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M & M (supra), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings…
[37]Perhaps for the present purpose a short and simple answer is that particularly in the context of determining disputed issues of fact or belief in respect of domestic or family violence or apprehension thereof, it would appear unsafe to afford inadmissible evidence any significant weight in the exercise of the Court’s fact finding function.
Accordingly, and whilst there was not significant dispute, the Evidence Act should apply where the issue was not simply one of unacceptable risk but where the mother seeks a finding in relation to a number of incidents of family violence including physical assault, sexual assault and physical and sexual abuse of the children.
CHRONOLOGY
1968 Date of birth of the mother
1971 Date of birth of the father
1998Parties commence a relationship. Mother alleges a defacto relationship but father alleges that the parties lived separately and apart until 2001.
Nov 2001Father alleges date of commencement of cohabitation. Commencement date is disputed by the mother.
2004Date of birth of the child W
2004Mother’s eldest child RH moves out of the home
2006Date of birth of the child J
2007Date of birth of the child Y
27.2.2008Mother’s daughter CH leaves the family home
2009Date of birth of the child Z
End 2009Mother’s daughter PP leaves the family home
Feb 2012Parties separate
19.3.2012Father leaves the family home
9.8.2012Intervention Order made in the local Magistrates Court
Dec 2012Mother and children move to shelter accommodation in Town L
July 2013Mother and children move to Adelaide
4.12.13Court orders the appointment of an Independent Children’s Lawyer pursuant to Section 68L of the Act. Court orders Families SA to provide documents pursuant to Section 69ZW. Court orders the parties to register at Children’s Contact Centre at Town LA.
19.3.13Upon noting fresh allegations have been made by the mother and the father’s willingness to be interviewed by Child Protection Services in respect of those allegations, the proceedings are transferred to the Family Court of Australia for consideration within the Magellan Protocols.
6.6.13Report prepared by Child Protection Services is published
2.11.13Report of Dr C published
13.11.13Order that the children spend time with the father under the supervision of the paternal grandmother Mrs P
9.12.13Second report of Dr C is published.
BACKGROUND
The mother is 45 years of age and in good health. Since completing her high school education she has undertaken a number of employment opportunities but usually in retail. She is not currently employed and it is her position that the needs of the children are such that she needs to attend to their care.
The father is 43 years of age and whilst he had a number of different occupations he is currently employed as a public servant but arising out of the unresolved criminal proceedings, is currently suspended from his duties.
The parties first met in or about 1988 but then had little or no contact with each other until early 1998.
In the intervening period the mother married Mr H on in 1988 and eventually separated from him in 1997. There were four children of that relationship namely RH born in 1987, PP born in 1991, CH born in 1992 and MH born in 1994.
The parties resumed their relationship in 1998. At the time the mother and her children were residing in Queensland and, whilst it is not controversial that the mother and the children relocated to Adelaide, the parties do not agree on the basis for that move. The mother contends that the father wanted her to return to Adelaide to live with him and he said in her words “he would look for a house upon his return. The father then found a house in [Suburb A] in about July 1998 and we proposed to buy it”. The father however says that the mother returned to Adelaide unilaterally and lived with her parents. At the time the father says he took up living with his parents. Without there being any discussion with the mother, the father asserts that he then purchased the property at Suburb A and agreed that the mother and her children could reside in the property and pay rent. He alleges that the rent was $180 per week, was paid in cash and was recorded in a rent receipt book signed and acknowledged by each of them.
The mother contends that cohabitation occurred in October 1998 when she took up residence in the Suburb A property. The father says that he lived with his parents until 2001 before a decision was made that the parties would commence cohabitation. The evidence given by each of the parties on this topic is unsatisfactory. The father was uncertain as to the exact arrangements and it is more likely than not that he spent the majority of his time with the mother in the A property. Whilst generally the evidence given by the mother as to the state of the relationship with the father was more cohesive, the weight that can be attached to that evidence is significantly diminished by evidence relating to the mother’s application for Centrelink benefit until 2001 specifically asserting that she was not in a de facto relationship. The relevance of the date of cohabitation (other than as to issues of credit) really only has as its target property issues and in particular, the basis upon which the father purchased the property in Suburb A. To some extent the more important issue is the recognition by the mother that she provided no financial contribution to the original purchase of the property (she alleges that the father contributed $30,000) and all other expenses were met by the father.
In 2003 the father and his siblings sold their interest in G Business with the husband receiving approximately $300,000 representing his share. The husband applied the proceeds of sale to discharge the mortgage against the A property in the sum of $78,000 with a further $100,000 being used to undertake extensive renovations to the A property. The balance of the monies were used to meet the family living expenses between the period 2003 to 2005 whilst the father was not working and the family generally not eligible for any significant Commonwealth or government benefit.
In 2006 the family moved from Adelaide and the A property to Town N. The Suburb A property was rented and the income derived therefrom was of assistance to the joint purchase by the parties of a property at Town N (“the N property”). The family remained living in the N property until 2008 when the family further moved to Town L and purchased a property in the sole name of the father at Town B (“the B property”). The N property was the subject of tenancy up until November 2012.
It was whilst the parties lived in the B property that they separated in March 2012.
It is a matter of significance both in terms of property considerations but also in relation to the evidence given by the mother’s three younger children from her marriage to Mr H (“the H children”) that they lived in the various homes of the parties for varying periods. It is not controversial that the mother took on the role of a homemaker, whereas the father was in reasonable and continuous occupation throughout the relationship thereby providing the income for the needs of the family including those of the H children.
Post separation the father remained at the B property until 19 March 2012 when he moved to Town U to commence a as a public service officer.
The mother alleges that from the early period of their relationship the father demonstrated aggressive and violent behaviour. She alleges that the father was controlling and would shout and abuse her without cause. Further that “the abuse escalated and became physical and was manifested by his punching, slapping, kicking, shoving and otherwise mistreating me. He would do this in the presence of the children”.
The mother also submits that the father had a difficult and fractured relationship with the H children. He was abusive towards them and they were made to feel unwelcome. Of greater concern to the mother is her assertion that the father undermined her relationship with her children and she says that it is only post separation that she has been able to reconcile her differences and rebuild a relationship with them. The mother places significance on the observations of the three younger H children, in particular PP who alleges that she was the subject of a sexual assault by the father in 2005 when she was 14 years of age.
The mother describes the father’s behaviour in the household as “domineering and at times brutish”. She alleges that the father would hit the child W and specifically describes an incident that took place when W was about two years of age and the father, then irritated at his crying, hit him repeatedly with the blows becoming harder and harder.
It was principally to deal with significant and worrying developmental issues affecting W that the mother sought assistance from CAMHS and in particular a worker Ms V. She gave evidence under subpoena and for reasons that will be expanded upon , I have significant misgivings as to the manner in which Ms V has conducted herself in becoming a supporter of the mother’s case rather than a practitioner focused on the needs of the child.
The perceived anxiety of the children J, Y and Z was responded to by the mother with the children being counselled by a range of different services but in particular YY Domestic Violence Services.
The general summary by the mother is that the children were abused directly by the father and subject and exposed to domestic violence whilst the parties were together. The mother asserts that this “has had a detrimental effect on their wellbeing and future development”.
The father considers that his relationship with the children was collectively and individually close. In particular whilst recognising that W exhibited difficult behaviour, the father’s position is that he and W had a very close relationship.
Whilst each of the children had individual characteristics, the father considers that J, Y and then Z were generally of placid and easy temperament.
There were difficulties between the parties as to the extent that the mother would allow the father to be involved in the more routine management of the children, but generally the father’s involvement with the children was maximised during the times that he was not working.
Contrary to the mother’s history, the father speaks of a good relationship with the H children. He speaks of giving RH his first job and of being prepared to support a private school education for RH and then a return to public school education. If anything, the father says that the relationship between RH and the mother was poor and that he would often adopt the role of peacemaker and facilitator. The father alleges that he treated the H children as equal members of the family. CH remained in the family home until February 2008 when she left, not for the reasons as asserted by the mother arising out of the abusive behaviour of the father, but because she wished to form a relationship with her boyfriend in Town N and the mother was not approving of same.
CH did return to the family home in 2010 but again there were difficulties in her relationship with the mother and she left after about six months.
PP left the family home towards the end of 2009 on good terms.
She changed her surname from H to P.
MH left the family home in 2011 in circumstances where the father alleges it was the mother who asked MH to leave on the basis that he was abusing the mother. The father alleges that the mother reported MH to the police for breaking into the home, that he was taking drugs and that the mother was concerned as to the adverse influence of MH on the four younger children of the relationship.
Following separation the mother agrees that she and the children travelled to Town U to spend time with the father during the April 2012 school holidays.
Once again the parties are in substantial disagreement as to the success of the visits. The mother alleges that the visits came to an end because the children were not able to tolerate the father’s outbursts of anger, whereas the father alleges that the family enjoyed a pleasant time together. He says that the parties resumed a sexual relationship and it was a happy time for all until the mother terminated the visit by exhibiting aggressive behaviour and resulting in an argument.
Further visits occurred on 20 April 2012 and 4 May 2012 which was the last occasion.
The parties kept in contact with each other and they discussed the arrangements for the father to spend time with the children. The father alleges that the mother became increasingly resistive to the concept of the children seeing him and on 27 June 2012 the father sent a message to the mother advising that he was intending to travel to Town L to spend time with the children. The father saw the children but he alleges that there was significant hostility generated by the mother. The mother has a different perception of this visit. She denies that there was a text message from the father advising of his intention to see the children in Town L, but rather, he arrived at the home unannounced. The children were not happy to see the father and became apprehensive, anxious and upset. It is as a result of the mother’s observations of the father’s behaviour that she says was the catalyst for her obtaining an Intervention Order from the Magistrates Court on 9 August 2012 which included not just the mother but the four infant children and her daughter PP. The mother also sought assistance from Victims Support Service and had installed a rapid response unit/alarm on her telephone.
The Intervention Order is Annexure “TJH1” of the mother’s trial affidavit filed 14 January 2014. The affidavit in support of the application for the restraining order sets out the basis for the application namely, that the father:-
(1) Caused personal injury (including assault) to me or a child named in this application;
(2) Caused damage to my property or that of a child named in this application;
(3) Followed me or the child;
(4) Loitered outside my home address or other places where I or the child frequently go;
(5) Entered or interfered with property occupied or in possession of me or the child;
(6) Gave offensive material to or left offensive material in a place where the child or I could find or see it;
(7) Engaged in other conduct so as to reasonably arouse apprehension of fear of personal injury or damage to property or any other significant apprehension or fear.
Of significance is that the mother alleges on May 2010, March, August and October 2011 and January 2012, the father physically assaulted the mother causing bruising, pain, a blood-nose and blurred vision. The mother says that on each occasion she felt humiliated, sad and ashamed. On each of the occasions as alleged the mother did not contact the police and there were no witnesses. Further, the particulars given in support of the Intervention Order allege that in July 2007 the father struck the child W with a ruler on his legs when he was in the bath, struck W on the bottom with a wooden spoon in June 2009, struck W with a wooden spoon in September 2009 and pushed W into the foot of a bed causing injury and pain in January 2012. There was no complaint made to the police and there were no other witnesses. Finally, it is further alleged that the father smacked the child Z on her right forearm in January/February 2011 with such force that the imprint of three finger marks was evident. The child was two years of age. The mother did not report the incident to the police.
The father was unaware of the Intervention Order proceedings. He alleges that an agreement was reached for him to see the children on 9 July 2012 during the school holidays. He was to have the children for an entire two week period and they would return to Town U with him.
The mother advised the father early on 9 July 2012 that the family were sick with flu and that the father should not come to Town L. When the father’s protestations were met with no reply, he drove to the B property and found the premises empty.
It appears that at all relevant times the mother and the children were in fact in Adelaide and not in Town L. The mother did not advise the father of her whereabouts or that of the children and there was no consultation as to the school at which the children were attending.
The father found out about the Intervention Order on 8 August 2012 when he further attended Town L in an attempt to find out the whereabouts of the children. For his part the father denies the mother’s allegations and whilst not pressed with any vigour, alleges that it was the mother who would sometimes act in a physical and aggressive manner towards the father.
Post separation, the father referred to substantial correspondence between he and the mother which is suggestive of significant residual affection rather than the distress, anxiety and fear as alleged by the mother. There was positive communication between the children and the father, equally so in respect of CH and PP.
The father denies that he sexually abused PP during the relationship or that he physically abused CH at any time.
The father did not see or communicate with the children from 27 June 2012 to the occasion of observed interaction in the offices of Dr C, the family consultant.
Pursuant to orders made 13 November 2013 (“the current order”), the father was to spend supervised time with the children W, J and Y and, after a period, with Z. The visits went well according to the father but in circumstances where he says that the children showed no reluctance or cautiousness in spending time with him, the mother did not bring the children to the handover point on 28 December 2013, 4 January 2014 and 11 January 2014.
That was the position as at the commencement of trial. It is not controversial that at that point the mother’s position was that she was not prepared to comply with the current order.
The evidence concluded on 28 February 2014 and was adjourned for submissions to 7 April 2014. Whilst there was no application to adduce further evidence, I have assumed that the mother reconsidered her position and the father has been spending time with the children up to present time.
The B property has been sold and as soon as is reasonably practical the father intends to take up residence in the Suburb A property.
Consequent upon my dismissal of the mother’s application to adjourn the current proceedings, leave was given for her to file and rely upon her further affidavit (filed 18 February 2014) and that from the three H children namely PP, CH and MH.
The affidavit filed on behalf of the mother was purportedly necessary because the mother was of the view that:-
[2]On reviewing my affidavit for the purpose of trial, I realise there were a number of matters, which I wish to bring to the Court’s attention. These matters were not referred to in my affidavit of 13 January 2014.
[3]In addition there have been some developments since 13 January 2014. In particular, I am very concerned about [W’s] welfare and I refer to these developments below. [Z] has also made disclosures to me following time with the father and I refer to these disclosures below.
The mother annexes to the affidavit various statements (“declarations”) provided by her to Senior Constable O on 2 November 2012, 15 May 2013 and 21 May 2013. The declarations are detailed but essentially provide particulars of the alleged extreme sexual assault and rape of the mother between 1998 and February 2012.
Some of the matters raised in the declarations are presumably the particulars that related to the various counts contained on the information laid against the father forming “Exhibit 1”.
By declaration made to Senior Constable O on 21 May 2013, the mother alleges that she has a belief that the children Z and Y have been sexually assaulted by the father.
It is alleged by the mother than on 14 December 2012 and 15 December 2012, the child Z made disclosures that the father had touched her on the bottom and that there was blood. She also alleged that she was touched on her vagina.
In a further statement also made on 21 May 2014, the mother alleges that the father may have sexually abused the child W because of behaviour described by the mother as “sexualised”. In addition, the mother included her notes of an alleged conversation with Z taken on 5 February 2014 recording an allegation that the father said that “we are all going to die…Daddy said we are all going to die in 100 30 100 days… our whole family is going to die”.
On 9 February 2014 the child Z spoke of the father possessing a gun and said that he had shown the gun to her in his bedroom at grandma’s house.
It is to be noted that not at any stage in the proceedings and in particular the trial affidavit filed 14 January 2014 (and the particulars in support of the Intervention Order) were any allegations raised of either sexual assault on the mother or the children, the mother being raped and being subjected to sexual assault and degradation that if true, borders on the horrific.
The evidence concluded on 28 February 2014. The matter was then listed for final submissions on 7 April 2014. However, in the interim the mother’s solicitor filed an Application in a Case on 31 March 2014 seeking leave to withdraw from the file. The reason given is contained in a supporting trial affidavit namely:-
[5]Once the trial concluded, I met with the respondent on 12 March 2014 and also on 19 March 2014 to discuss an ethical issue, which had arisen between myself and the respondent as a result of evidence given by the respondent to the Court during her cross examination.
[6]As a result of discussions with the respondent and counsel, I have received advice that a conflict of interest has arisen. I have advised the respondent that in the circumstances I cannot continue to represent her in these proceedings.
The mother appeared unrepresented and agreed that her solicitors were no longer able to properly represent her. Whilst I was not made aware of the nature of the perceived conflict, (nor would it have been proper of me to do so), reluctantly I gave leave for the mother’s solicitors to withdraw.
There is therefore a significant contribution made by the father to which I need to give appropriate weight.
There are, however, four children of the relationship and it should not be said that the wife did not make other than an entirely appropriate contribution as a homemaker. I do not in any way diminish the mother’s efforts in this regard.
It need also be raised that for varying periods of time throughout the relationship the father had the financial obligation of caring for the mother’s four children from her marriage with Mr H. The mother did not seek to challenge the father’s assertions in this regard, although she did seek to minimise the extent of his contribution by suggesting that he had a dysfunctional relationship with the children and that ultimately they were forced to leave the home because of the breakdown of their relationship with the father.
I am not satisfied that that is the case and whilst there may have been some level of disagreement between the father and the H children, that does not necessary impact upon my finding that financially they were treated no differently to the subject children of these proceedings. There must be significant weight given to the father in that regard.
Accordingly, the mother made a significant contribution by way of homemaker, but the father made an overwhelming financial contribution in respect of his interest contributing to the relationship by reason of the A property (which still forms part of the pool) and the substantial interest in the G Business upon its sale.
Taking into account that the total net pool (excluding N property but including superannuation) is $325, 640, I consider that the respective contributions of the parties should be reflected as to 75 per cent to the father and 25 per cent to the mother.
Section 90SF (3)
Section 90SM (4) (e) requires that I consider factors that may be relevant as set out in Section 90SF (3).
The husband is currently employed but is suspended. There is obviously some uncertainty as to his work future should he not be successful in defending the criminal proceedings. Otherwise, the father has a history of employment and his prospects are likely to be superior to those of the mother. The mother has not engaged significantly in employment across the period of the relationship. That is not to suggest that she doesn’t have any ability for employment but her skill set is poor and she has primarily been engaged in the care, supervision and homemaking of the family and post separation, the children.
The asset pool is modest.
Both parties enjoy reasonable health and it may be the case that as a result of the children spending more time with the father there is some better opportunity for the mother to seek gainful employment.
I have indicated that the sale of the N property is to be left under the control of the father. As I have indicated, it is likely that there will be some shortfall but equally there is a possibility that will not occur. I consider it appropriate that the father sell the N property (or retain it if he so chooses), but that he indemnify the mother for any loss that might arise therefrom. This is a matter that should be brought to account under Section 75 (2) (o) and I do so taking into account that on the available evidence any shortfall will be modest.
By a comparison of their respective circumstances going into the future of the parties, it is justified that there should be an adjustment in favour of the mother of 15 per cent in circumstances but for the N property the adjustment would have been 17.5 per cent.
Accordingly, the father is to retain 60 per cent of the pool (including his superannuation) and the mother is to retain 40 per cent.
Accordingly, the mother should retain property to the value of $130,259. She retains as her only asset the Nissan motor vehicle at $9,250 and superannuation to the sum of $2,000 leaving a settlement sum payable by the father to her of $119,006.
In addition, I propose to order that the mother deliver up to the father forthwith his three watches.
Given the circumstances of the father, I think it reasonable that he have three calendar months to pay the settlement sum, in default of which the A property will be sold.
I make orders as set out at the beginning of these reasons.
I certify that the preceding four hundred and eighty seven (487) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 28 May 2014.
Associate:
Date: 28 May 2014
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