PLOUGHMAN & PLOUGHMAN
[2017] FamCA 612
•17 August 2017
FAMILY COURT OF AUSTRALIA
PLOUGHMAN & PLOUGHMAN [2017] FamCA 612
FAMILY LAW – CHILDREN – Parenting Orders – Where the children, aged 12 and 15, live with their father and spend limited time with their mother – Where both parents seek that the mother’s time with the children be extended – Where the children wish for their time with both parents to be more equal – Where the mother has a history of alcohol abuse – Where the mother’s evidence was not considered reliable – Where the Court must balance the importance of the children having a meaningful relationship with their mother with the risk posed by the mother’s potential relapse into alcohol abuse – Orders made for the children to spend five nights per fortnight with their mother.
FAMILY LAW – PROPERTY – Application for an adjustment of property interests pursuant to s 79(2) – Where the husband is found to have made greater contributions – Where a s 75(2) adjustment of 5 per cent is made in favour of the wife – Where the overall division of the asset pool is 60 per cent to the husband and 40 per cent to the wife – Where a single pool approach is adopted – Orders made for the sale of the former matrimonial home and for each party to retain 50 per cent of the interests held by their self-managed superannuation fund.
Family Law Act 1975 (Cth) s 60CC, 75(2), 79(2)
APPLICANT: Mr Ploughman
RESPONDENT: Ms Ploughman
INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer
FILE NUMBER: SYC 3985 of 2014
DATE DELIVERED: 17 August 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Rees J
HEARING DATE: 2, 3 and 4 August 2017 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Tockar
SOLICITOR FOR THE APPLICANT: Toomey O'Brien Lawyers
COUNSEL FOR THE RESPONDENT: Mr Ford
SOLICITOR FOR THE RESPONDENT: Acorn Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Falloon
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Independent Children's Lawyer
Orders
IT IS ORDERED
PARENTING
1.All previous orders with respect to the children B, born … 2001, and C, born … 2005, are hereby discharged, including orders for the independent representation of the children.
2.That the parents shall have equal shared parental responsibility for the children.
3.That except as provided in these Orders, the children shall live with the husband.
4.That the children shall live with the wife, during school terms, as follows:
a.In week 1, from after school on Friday until the commencement of school on Monday; and
b.In week 2, from after school on Tuesday until the commencement of school on Thursday.
5.That the children shall live with the parents during school holidays as follows:
a.During the Terms 1, 2 and 3 school holidays, in odd numbered years with the wife from after school on the last day of the term until 7.00 pm on the seventh day thereafter, then with the husband until the first day the children are required to attend school for the next term;
b.During the Terms 1, 2 and 3 school holidays, in even numbered years with the husband from after school on the last day of the term until 7.00 pm on the seventh day thereafter, then with the wife until the first day the children are required to attend school for the next term;
c.During the December/January school holidays, in odd-numbered years:
i.With the wife from after school on the last day of the school year until 7.00 pm on the fourteenth day thereafter;
ii.Then the husband until 7.00 pm on the 28th day of the holidays;
iii.Then for half of the remaining holiday period with the wife;
iv.Then until the conclusion of the holiday period with the husband.
d.During December/January school holidays, in even numbered years:
i.With the husband from after school on the last day of the school year until 7.00 pm on the 14th day thereafter;
ii.Then with the wife until 7.00 pm on the 28th day of the holidays;
iii.Then for half of the remaining holiday period with the husband;
iv.Then until the conclusion of the holiday period with the wife.
6.That Orders 4 and 5 shall be suspended as and when necessary so that the children spend time with the parent they would not otherwise be with, as follows:
a.With the husband from 6.00 pm on the day before Fathers’ Day until 8.30 pm on Fathers’ Day;
b.With the wife from 6.00 pm on the day before Mothers’ Day until 8.30 pm on Mothers’ Day;
c.In odd numbered years, with the husband from 5.00 pm on 24 December until 8.30 pm on 25 December;
d.In even numbered years, with the wife from 5.00 pm on 24 December until 8.30 pm on 25 December;
e.For the children’s birthdays falling on school days, from after school until 8.30 pm, and for the children’s birthdays falling on non-school days, for not less than two hours between times acceptable to the birthday child.
7.That the parents may vary the provisions of these Orders, by written agreement, which may be by way of text messages, provided that a parent proposing a variation shall give not less than 3 days’ notice to the other parent with respect to times during school terms, and not less than 14 days’ notice with respect to school holiday periods.
8.That for changeovers on non-school days, the parent who is to commence caring for the children shall collect them from the home of the other parent, unless otherwise agreed.
9.That if it is intended that a child will sleep elsewhere than in the home of a parent for one or more nights, the parent who knows of that intention shall advise the other parent, by way of text message, of:
a.the address of the place where the child will be during the relevant night(s); and
b.the name of at least one responsible adult at the relevant address.
10.That if a parent becomes aware that a child will not be attending school on a school day, because of illness or for any other reason, that parent will inform the other parent of the child’s absence and the reason for his/her absence.
11.That the wife shall not consume alcohol for a period of 12 hours before the children or one of them is to be in her care, or during any periods when the children or one of them is in her care.
12.That the wife shall not bring the children or either of them into contact with, or permit them to remain in the presence of Mr D.
13.That within six months from the date of these Orders, both parents shall attend a post-separation parenting program for assistance, particularly with respect to their communication about parenting matters, and provide the other parent with a copy of written confirmation from the course provider that he/she has completed the program.
14.That if the parents are unable to agree about a parenting issue arising in the future, they shall in the first instance appoint a suitably qualified mediator to assist them to resolve their disagreement.
15.That the parents shall each pay to Legal Aid NSW the sum of $5,315 for the costs of independent representation for the children, and unless otherwise agreed by Legal Aid NSW, such payments shall be made within six calendar months of the date of these Orders.
PROPERTY
16.That the husband and the wife do all things required to sell the property at E Street, Suburb F and to pay the proceeds of sale in the following manner and priority:
a.In repayment of the mortgage secured over the property;
b.In payment of any outstanding Council and Water rates;
c.In payment of the costs of sale including legal costs and agents’ commission;
d.In payment of any debit balance in the offset account linked to the mortgage;
e.In payment of 47.5 per cent of the balance remaining to the Husband;
f.In payment of a further amount of $54,473 to the husband;
g.In payment of the balance to the wife.
17.That from the funds received by the wife pursuant to Order 16, she deposit $15,900.64 to the ING savings account …93 (account for C) and $11,496.25 to the ING savings account …50 (account for B) and she thereafter holds those funds in trust for C and B until each child reaches the age of 18 years (or such other age as is agreed by the parties in writing) and that, unless agreed in writing by the husband, she is restrained from using any of those funds.
18.That, within seven days from the date of these Orders, the husband direct G Pty Ltd as Trustee of the Ploughman Family Trust Superannuation Fund to transfer the following to the wife’s nominated superannuation fund:
a. 50 per cent of the shares held by G Pty Ltd in H Ltd ACN …12;
b. 50 per cent of the funds held in the Macquarie Cash Management Account number …44; and
c. 50 per cent of the shares held in CommSec account number …88.
19.That within fourteen days from the date of these Orders, the wife do all acts and things and sign all documents so as to transfer her share in G Pty Ltd to the husband and so as to resign as a member of the Ploughman Family Trust Superannuation Fund.
20.That the husband indemnify the wife from all taxes, fines, penalties and costs associated with G Pty Ltd and the Ploughman Family Trust Superannuation Fund.
21.That other than as provided in these orders, each party shall be entitled to retain the assets in his or her possession.
IT IS ORDERED BY CONSENT
22.That following the settlement of the sale of the former matrimonial home the wife will reimburse the husband the sum of $2,750 being one half of the costs of the second report of Ms L.
23.That following the settlement of the sale of the former matrimonial home the wife will reimburse the husband the sum of $1,210 being one half of the estimated costs of the third report of Ms L and her attendance at Court.
24.That in the event that the cost of Ms L’s third report and attendance at Court is greater than the estimated cost, then the Independent Children’s Lawyer (“ICL”) will notify the parties and the parties shall provide the ICL with sufficient funds, equally, to satisfy the cost of Ms L’s third report and attendance at Court within 30 days of being notified.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ploughman & Ploughman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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).
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYC 3985 of 2014
Mr Ploughman Applicant
And
Ms Ploughman Respondent
REASONS FOR JUDGMENT
1.Mr Ploughman (“the husband”) and Ms Ploughman (“the wife”) commenced their co-habitation in 1989. At that time, the husband who is a registered professional, was in private practice, and the wife was in full time employment.
2.In 1994, they purchased a property at E Street, Suburb F (“the former matrimonial home”) for $486,000 paying a deposit of $120,000 and borrowing the balance from the State Bank. There is a dispute about the source of the $120,000 deposit.
3.In 1998 they married.
4.In 2001, their daughter B was born. Shortly after B’s birth, her paternal grandmother gave the wife a cheque for $8,000 and asked her to put it into an account for B. Following B’s birth, the wife did not work.
5.In 2005, the husband and his brother inherited a property at M Street, Suburb N (“M Street”). The property was unencumbered. After spending some money on renovations, the husband and his brother rented the property.
6.In 2005, their son C was born. As had happened with B, soon after C’s birth the paternal grandmother gave the wife a cheque for $8,000 to put into an account for C.
7.It is the husband’s case that shortly after C was born, the wife increased her consumption of alcohol to an extent that it became troublesome.
8.The wife returned to part-time work some time after the birth of C.
9.In 2009, the business in which the husband was a partner merged with H Limited (“HL”) and the husband received shares in HL which were transferred to the parties’ self-managed superannuation fund, the Ploughman Family Trust Superannuation Fund (“the SMSF”). A later share issue was also transferred to the SMSF.
10.In March 2010, the wife was admitted to the O Clinic for treatment with difficulties with alcohol on two occasions. She was admitted for the third time in November 2011.
11.In 2013, the wife was charged with a high range drink driving offence and her licence was suspended for 18 months.
12.Between 2013 and March 2015, the police were called and attended on the wife on a number of occasions which are detailed later in these reasons.
13.At some time in 2013, the wife formed an intimate relationship with Mr D. Mr D’s history will be referred to again in these reasons.
14.The parties separated on 3 August 2013. The wife remained in occupation of the former matrimonial home with the children.
15.The husband left the former matrimonial home and moved into M Street, the property at Suburb N owned by himself and his brother. The husband and his brother contend that they reached an agreement that the husband would pay the equivalent rent to that paid by the previous tenant when he was in a position to do so.
16.On 7 August 2013, B who was then aged 12, sent a text asking her father for help. One of the text messages read “He is here and mum is drunk again”.
17.On 6 October 2013, B sent a text to the husband saying “Mum left us alone again and she is drunk”.
18.On 27 November 2013, B telephoned her father and told him that the wife had gone out and she and C had been left alone. The husband went to the house on 28 November 2013 to take C to karate and the wife was not there.
19.Between 26 February 2014 and 18 March 2014, the wife was admitted as an inpatient to the O Clinic for treatment of alcohol abuse. She was diagnosed by Dr P with Major Depression and Alcohol Abuse Dependence.
20.On 1 May 2014, B sent a text to her father to the effect that her mother had passed out in bed.
21.On 15 May 2014, the wife was admitted to Q Hospital emergency department.
22.In May 2014, there was an incident where the wife attempted to collect C from school but was observed to be intoxicated, and a neighbour, Mr U, took C home.
23.On another occasion in May 2014, Mr U took the children home when the wife could not be found. Later, Mr U and another neighbour went to the wife’s home and found her lying on the floor in the back of the house, not unconscious but completely unresponsive.
24.On 10 June 2014, the wife was charged with high range drink driving.
25.On 17 June 2014, Mr U delivered the children to the wife’s residence and found her drunk. He called an ambulance and she was admitted to Q Hospital. He took the children to the husband’s residence.
26.Since that time the children have lived with the husband.
27.On 26 June 2014, the wife was admitted to Q Hospital having been picked up at the S Hotel heavily intoxicated and she was then transferred to a rehabilitation program at T Clinic.
28.On 30 June 2014, the husband commenced proceedings in the Federal Circuit Court for parenting orders.
29.On 8 August 2014, Orders were made, noting that the wife was in rehabilitation at T Clinic, and providing for her to spend time with the children from 2.00 pm to 4.00 pm on Saturday and from 6.15 pm to 7.15 pm on Wednesday. The husband was to deliver and collect the children from the rehabilitation facility. Other nominated adults including the wife’s sisters and Mr and Ms U were also authorised to deliver and collect the children. The Orders also provided that the wife not consume alcohol for six hours prior to any time the children were with her or while the children were with her. Also on that day, an Independent Children’s Lawyer (“ICL”) was appointed.
30.On 31 October 2014, an Order was made for the appointment of a single expert for the purpose of preparing a report. Orders were made extending the time the children spent with their mother to occur each Saturday from 12.30 pm to 5.00 pm and after school Wednesday until 8.30 pm; on Christmas Day from 10.00 am to 6.00 pm; and on B’s birthday from 5.30 pm to 6.30 pm. The time the children spent with their mother was to be supervised.
31.In addition, the Orders of 31 October 2014 provided that the wife have overnight time with the children supervised from 4.00 pm Saturday to 10.00 am Sunday once per month, that time to be spent at the residence of the supervisor. The Orders also provided that the wife have the children for eight days from 9.30 am to 4.30 pm in the December/January 2015 school holidays, again in the company of a supervisor. Orders were also made for both of the parties to undergo random urinalysis testing at the instigation of the ICL.
32.On 11 December 2014, Orders were made restraining the wife from bringing the children into contact with Mr D. On the same day, Orders were made requiring the wife to undergo liver function testing.
33.On 4 March 2015, the single expert Ms L, a clinical psychologist, released a report recommending that the children live primarily with the husband.
34.On 3 April 2015, the husband entered into a lease for rental property at V Street, Suburb F where he continues to live with the children. The property leased by the husband is in close proximity to the former matrimonial home which is occupied by the wife.
35.On 14 May 2015 the proceedings were transferred to the Family Court of Australia.
36.On 1 July 2015, the husband left private practice and commenced employment with a public utility where he was not required to work long hours so that he could attend to his responsibilities for the children.
37.On 20 July 2015, the husband received a telephone call from B who was crying and told him “Mummy called me and said she was going to kill herself. I could tell she had been drinking. Mum said she wanted to see me for the last time. I went over to the house and there were empty bottles at the front door. I tried to open the door with my key but Mum’s changed the locks again.”
38.In February 2016, the relationship between the wife and Mr D ended. They have since remained friends and see one another occasionally.
39.On 26 April 2016, the family were interviewed by a Family Consultant pursuant to the Child Responsive Program. The Family Consultant’s memorandum of 6 May 2016 noted as issues “Whether the children are at risk of harm in relation to their mother’s alleged alcohol use” and “Whether the current requirement for supervision should continue while the children spend time with their mother”.
40.On 15 August 2016, Ms L prepared an updated report.
41.On 23 August 2016, Orders were made which provided for the wife’s time with the children to include some unsupervised overnight time.
42.On 28 August 2016, the husband removed the wife as a director of the SMSF and transferred $50,000 from the SMSF to his own bank account.
43.On 2 November 2016, the ICL requested that the wife undertake a CDT test but the wife did not provide the required sample until five days later.
44.On 28 November 2016, the husband transferred a further $4,000 from the SMSF to his own account.
45.On Christmas Day 2016, both of the children went separately to the wife’s home but C returned after about 15 minutes and B returned after about 20 minutes.
46.On 19 April 2017, the ICL sent a letter to the wife’s solicitors again requesting that she undertake a CDT test. The wife’s solicitors replied in words to the effect of, “Our client instructs us that she will have great difficulty in complying. She is presently working two jobs part-time usually not getting home until very late at night around midnight… We request on this occasion she not be obliged to carry out the testing.”
47.On 4 July 2017, the husband transferred a further $30,000 from the SMSF to his own account.
48.The matter was listed for hearing in relation to both parenting and property for three days commencing on 2 August 2017.
49.A third updating report was prepared by the single expert and released the day before the hearing. That report dealt largely with the children’s wishes.
50.At the hearing the Court was assisted by the ICL. The single expert was cross‑examined.
51.The husband relied upon affidavits by himself, his mother, his brother and Mr U. Neither the paternal grandmother nor Mr U were required for cross-examination.
52.The wife relied upon affidavits by herself, a number of friends and relatives and her treating psychiatrist, Dr P. None of the wife’s witnesses were required for cross-examination. Those witnesses did not appear, on the face of their affidavits, to have any awareness of the wife’s problems with alcohol.
53.Although the wife in her case information document had indicated that her psychotherapist, Ms W, would give evidence, no affidavit from Ms W was filed and her notes were not tendered in evidence. In cross‑examination, the wife said that she had asked Ms W if she would swear an affidavit and Ms W had agreed to do so. There was no explanation for her not being called to give evidence.
THE WIFE’S ABUSE OF ALCOHOL
54.As can be readily seen from the historical narrative, the wife’s use of alcohol is central to the parenting issues and occupied much of the attention of the single expert and of the trial.
55.The subpoenaed material in relation to the wife’s history of alcohol abuse was summarised by the single expert, Ms L, in her reports. The parties agree that Ms L’s summary is accurate and therefore the summary that follows is taken from Ms L’s report and includes some of Ms L’s commentary.
56.Ms L reported:
Perusal of the police events indicated that [the wife] is well known to the police and that they have attended (sic) her on over 15 occasions since 2013. Most recently, [the wife] telephoned triple 0 on 17/10/2014 and terminated the call, prompting the police to respond. When the police arrived, [the wife] was reportedly “belligerent and rude”, smelled of alcohol, told the police to “fuck off” and demanded that they not record the incident as it would “fuck [her] court case with [her] children”. She claimed that she had been trying to call Lifeline because they were food (sic) listeners and she denied suicidal ideation. Police also attended the same location on 9/10/2014 under similar circumstances, whereby [the wife] appeared “well-affected by alcohol” and was “hostile” to the police. On 1/10/2014, [the wife] reportedly reported an incident to the police but when they attended her home on two occasions, she was not prepared to speak to the police. She was again “rude and belligerent”, and unwilling to cooperate. On 29/9/2014, [the wife] again called the police but when they arrived she told them to “go away”. She apparently complained that her ex-husband had threatened to come over but she was unable to explain furthers (sic). [The wife] was noted to be affected by alcohol and two empty wine bottles were seen on the kitchen counter. On 10/7/2014, [the wife] called the police and said she was being stalked and was fearful for her safety. She also called the police on 11/7/2014 claiming that she did not know where her children were but the police note that she often does this, knowing that they are with her ex-husband. She was advised to stop contacting police about Family Court matters. On 9/7/2014, she apparently reported to police that [the husband] had come to her home with wine and take away food, two days after her mother died and following rehabilitation. On 26/6/2014, [the wife] called triple 0 and the police attended. However, she told them to “fuck off” and claimed she did not call them. She indicated the she was missing her children. On 26/6/2014, the police had been called to the [S Hotel] because [the wife] was so affected by alcohol (and possibly Valium) that she was unable to stand, keep her head up or her eyes open. They called an ambulance after speaking to [the husband]. On 23/6/2014, the police attended a domestic dispute between [Mr D] and [the wife], with both seemingly have consumed excessive amounts of alcohol (sic). They had reportedly attended a few days earlier for a similar incident. On 20/6/2014, the police were called by [the wife] but she then told them to go away after they arrived. She claimed that her former boyfriend had stolen a $5,000 statue. On 18/6/2014, the police were called by an observer who claimed that [the wife] was suicidal. Police took her to hospital because she was well affected by alcohol and being uncooperative. They were also called on 2/6/2014 when [Mr D] refused to leave [the wife’s] home due to concerns that she would drink all night, having only been released from hospital 10 days previously. Several other incidents also refer to [the wife] being affected by alcohol, including on 3/12/2013 when she was removed from the X Hotel.
57.Ms L reported:
I note that [Mr U] (sic), in his affidavit dated 5/8/2015, stated that he witnessed [the wife] so intoxicated on 28/5/2014, that she was lying on the floor and unable to get up. She had apparently failed to pick up the children from school that day and he attended her home. He claimed that she had scrapes on her cheek and had apparently fallen down the stairs. [Mr U] (sic) stated that the school principal, [Mr Y] had spoke (sic) to [the wife] on the school line when she was intoxicated in late May 2014, and had apparently agreed to [Mr U] (sic) taking [C] and a friend home to his house, rather than the children getting in the car with [the wife].
58.I note that Mr U swore an affidavit in the proceedings and was not required for cross-examination.
59.Ms L noted that the wife was charged with driving under the influence of alcohol on 10 June 2014. The charge was a high range offence and the wife told the single expert that she drove because she has a high tolerance to alcohol. She noted:
[Q] Hospital records indicated that [the wife] was seen on 15/5/2014 after she had called Suburb Z Police Station saying she wanted to “end” it. She said that she felt like hurting or killing herself and so was scheduled under the Mental Health Act. In her property, [the wife] had Mersyndol, Nurofen and Codral. [The wife] reportedly acknowledged having three bottles of wine with Lexapro (antidepressant).
[The wife] also presented to [Q Hospital] on 28/5/2014 after a friend found her in (sic) house with broken glass around. She allegedly said that she wants to die to the ambulance officers and so was scheduled. In the D & A notes on 29/5/2014, [the wife] stated that alcohol has been problematic for past seven years, with an escalation in the last few weeks. She reported drinking vodka from the morning. She apparently agreed to a referral to [Clinic AA] or [Clinic BB]. Importantly, there is a notification to the Child Wellbeing Unit, stating that the children were present when [the wife] was found and voicing suicidal ideation.
On 18/6/2014, [the wife] was again scheduled at [Q Hospital]. The police were called by a friend after [the wife] was speaking about not wanting to be without her children and threatening to not be there in the morning. She seemingly acknowledged to taking wine and vodka with Lexapro, although she denied wanting to kill herself. In the notes, the police from [Suburb Z] said that [the wife] is “well known’” to them. The notes of the Drug & Alcohol Worker on 19/6/2014 indicate that [the wife] was “minimising the extent of her alcohol abuse”. [Dr CC] also expressed concern that [the wife] continues to rationalise her behaviour and the team said that they were not comfortable with her having unsupervised time with the children in the short term. They made a notification to FaCS and told [the husband] the same.
Similarly, on 20/6/2014, [the wife] was taken to [Q Hospital] again, after refusing to leave the [DD] Hotel. On 26/6/2014, [the wife] was taken to [Q Hospital] via Ambulance after she refused to leave the [S Hotel]. She was apparently unable to walk alone and was mumbling. At hospital, she was apparently being “belligerent” and refusing to answer questions but she later disclosed suicidal ideation to nursing staff. During the admission, she apparently tried to abscond and was sedated.
60.In relation to the notes produced by the O Clinic, Ms L reported:
With regard to rehabilitation, [the wife] claimed that her first detoxification and rehabilitation was in the [O Clinic] some four or five years ago, and that she stayed for three weeks. She said that she admitted herself because she was concerned about her level of consumption. At interview, she claimed to have remained sober for 12 to 18 months after being in the [O Clinic]. The notes, however, indicate three admissions; two as an inpatient and one as an outpatient. They indicate an admission on 1/3/2010 to 24/3/2010 and another on 18/11/2011 due to her drinking 1 to 2 bottles of wine per day for 2 years. She also reported a history of depression and anxiety attacks. Perusal of the [O Clinic] notes indicate that [the wife] attended an outpatient program during 2012 but lapsed in the 7th and 8th week of the program. She seemingly attended irregularly from January to August 2012. She was admitted between 26/2/2014 and 18/3/2014 as an inpatient for alcohol abuse. At that time, she admitted to drinking 2 bottles of wine (sometimes more) per day for (sic) last two months. Dr P diagnosed her with Major Depression and Alcohol Abuse and Dependence.
61.In relation to the wife’s admission to T Clinic, Ms L reported:
After allegedly discovering that [the husband] was having an affair, 12 months into her sobriety, [the wife] reportedly resumed drinking by having a “one off binge” and then abstaining again. She claimed that she gradually used alcohol to self-medicate her situation, due to the marriage being “so awful” and [the husband] disappearing and turning his phone off. She claimed that she had since discovered he had affairs with more than one woman and that the dishonesty is what has upset her the most. She claimed that she engaged in binge drinking every few weeks over that period. She denied daily use of alcohol until just prior to her admission to [T Clinic]. This pattern of use, however, is not consistent with the aforementioned notes, in which [the wife] consistently acknowledged drinking 1-3 bottles of wine per day over several years. Nor is this pattern consistent with the notes below, where [the wife] was admitted to [Clinic AA] before going to T Clinic.
I note that there is a reference to [the wife] attending .. [FF Clinic] program in the notes from Q Hospital on 19/6/2014. Additionally, there was documentation from [Clinic AA], where [the wife] underwent detoxification in 27/6/2014. In that intake, she admitted to having 2-3 bottles of wine 5 out of 7 days, on and off over the past five years. There is also a reference to depression being diagnosed by [Dr P] 6 months ago. She did not want the information released to her sister [Ms EE] or [the husband]. She (sic) discharged 1/7/2014.
62.Ms L noted that the wife did not mention Clinic AA or FF Clinic at the interview but volunteered that she had attended T Clinic voluntarily for a ten week program from 21 July 2014 to 19 September 2014 according to the letter produced by T Clinic.
63.Ms L stated:
The notes form (sic) [T Clinic] indicate that [the wife] was admitted on 21/7/2014 and discharged on 19/9/2014. The reasons for referral were for “detox and rehab” in the context of a marriage breakdown, her mother’s death, domestic violence and a high DUI charge. At the time, she admitted drinking 2 bottles of wine per day. She also expressed suicidal ideation.
64.She continued:
According to [the wife], she remained sober for two to three weeks after being released from [T Clinic] and then relapsed. She then suggested that this was more of a “lapse” as opposed to a “relapse”. However, I note that the bank records from ING indicated that [the wife] used her card at the [Suburb GG] hotel on 30/9/2014 and 1/10/2014 and made a purchase from [the bottle shop] on 9/10/2014 after leaving [T Clinic] on 19/9/2014.
65.She reported:
[The wife] stated that she also sought the help of [Dr P] (psychiatrist) to take Antabuse in October 2014. She claimed that he had previously given her a prescription but that she was not ready to take it until October 2014, after her aforementioned “lapse” when she realised she needed to take Antabuse as a “backup plan”. Later in the interview, [the wife] also acknowledged that her GP … prescribed Campral in 2013 to help manage the alcohol but [the wife] considered that this increased her anxiety, and so led her to drink. [Dr P], in his letter dated 28/10/2014 indicated that [the wife] had commenced Antabuse, and that she would become physically unwell if she drank alcohol on top of this medication. He opined that [the wife] was “very insightful” in to the nature of her problems and is aware that she needs to stabilise her life. He appeared to be concerned about the impact on [the wife] of “only having three a half (sic) hours access to her children each week” and asked for his letter to be provided to the Presiding Judge. In the telephone interview with Dr P, on 2/2/2015, he suggested that he last saw [the wife] on 11/11/2014 and that she claimed to have been sober for three weeks. She apparently expressed frustration with the legal process at the time. Dr P said that [the wife] would not be a good candidate for controlled drinking and that abstinence should be the goal with her. He suggested that she should continue to take Antabuse, possibly for longer than 12 months, depending on her psychosocial stressors and her goals in the future.
66.She reported:
In addition to formal rehabilitation and medication, [the wife] has apparently attended approximately 30 AA meetings. She claimed that she went every second day after leaving [T Clinic] but that since she engaged in therapy in 2014, she has not attended any meetings. She denied having a sponsor through AA, which she attributed to her feeling intimidated by people in AA. She opined that her therapist, [Ms W], is her equivalent of a sponsor. [Ms W] (psychotherapist), wrote a supportive letter for [the wife], dated 29/10/2014. However, it stated that she had only been seeing [the wife] since 15 October 2014.
At interview [on 10 February 2015], [the wife] claimed to have been largely abstinent from alcohol since October 2014, with the exception of sharing a bottle of wine with [Mr D] on New Years Eve 2014.
67.She stated:
[The wife] disclosed that she stopped taking Antabuse for three days so that she could share a bottle of wine on New Year’s Eve with [Mr D] and that she then resumed taking Antabuse consistently. As such, she claimed that she has only had three glasses of wine since October 2014. However, I note that [the wife’s] lawyer, in his letter to the ICL dated 25/11/2014, point 4, claimed his client consumed alcohol on “Friday 14 November 2014. She further instructs us this was a one-off lapse and it will not be repeated”. He again asserted on 1/12/2014 that [the wife] instructed him that she has abstained from alcohol since 14 November 2014.
I note that urinalysis on 10/11/2014 indicated that [the wife] was negative for alcohol but suggested further testing was required for opiates. I also note that the ICL requested that this be done on 7/11/2014 and that [the wife’s] lawyers claim that she was unable to find anywhere to collect a specimen until the following Monday.
68.In relation to the CDT testing which was undertaken by the wife, Ms L reported:
With regard to CDT testing, [the wife] acknowledged high results on the first test, which she claimed was after her aforementioned “lapse”. It should be noted that she previously claimed this lapse was in September 2014 but the CDT tests were in late November. The CDT results of 21/11/2014 (requested on the same day) were 4.3% where a range of 1.4% to 1.6% is considered equivocal and anything over 1.7 indicative that the person has consumed at least 60 g of alcohol per day over the past 14 days. She vehemently denied that she had been consuming alcohol heavily for 14 days prior, but she claimed that she had drunk a few days before and indicated that she “probably” had three bottles of wine each day for three days before the testing. She said that her second test was well below the cut off. The results of 20/1/2015 (requested on 19/1/2015) were 0.5% and are considered within the normal range and not reflective of a period of heavy drinking. These results do not rule out that [the wife] was consuming alcohol, only that she was not consuming more than 6 drinks per day for 14 days. The liver functioning tests on (sic) same date show no abnormalities in liver functioning, suggesting that she had no problems with her liver functioning. These results suggests that [the wife’s] previous high CDT results were not due to any liver abnormalities but were a true reflection of an exceptionally heavy period of drinking.
In [the wife’s] affidavit dated 16/9/2014, [the wife] said she intended to “not be drinking alcohol again”. However, she has seemingly since consumed alcohol in September, October, November and December 2014. Importantly, this has been since rehabilitation and seemingly even with Antabuse, at least since October 2014. Thus, some concern has to be raised about [the wife’s] compliance with Antabuse and her capacity to maintain sobriety or moderate drinking.
69.The wife told Ms L, in the course of the interview on 10 February 2015:
… that she now sees alcohol as a symptom of other stressors and so she has put things in place such as Antabuse to prevent a relapse. [The wife] also claimed that her supportive relationship with [Mr D] helps because he does not allow her to drink. When it was pointed out that it seems odd that he would allow her to have alcohol on New Year’s Eve, she claimed that he is supportive of her not drinking, that he does not drink around her or leave any alcohol in the house and that he ensures she has her Antabuse and makes the right decisions.
70.Ms L reported:
[Mr D], in his affidavit dated 7/8/2014, indicated that he told [the wife] in June 2014, that she “need[s] to stop drinking alcohol completely”. Importantly, however, [Mr D] was seemingly unable to manage [the wife’s] drinking on 2/6/2014 in the aforementioned police event, when [the wife] wanted him to leave to her home (sic) and he expressed concern that she would drink all night.
71.Ms L reported:
[The wife] also minimised the impact of alcohol on her day to day functioning and safety. She denied the allegations of her being lost or at risk of harm, although she acknowledged being raped on one occasion when she was intoxicated. She said that this was a very violent attack on her and that she was lucky to have her life and she claimed that [the husband] did not believe her and dropped her in the street and told her to find emergency, in a rather callous manner. The police records on 1/4/2013 indicate that [the wife] had initially not wanted to report to police but later did and CCTV footage was obtained of her sitting out the front of the hotel after being refused re-entry and a male grabbing her hand and walking away.
72.When interviewed in February 2015, the wife was asked about her risk of relapse. Ms L reported:
… she considered that the risk was “low” because she now has the “right help for the right issues”. That is, she claimed that she needs to take her vitamins, the Antabuse and be around the right people. If she lapsed again, [the wife] claimed that she would immediately call her counsellor, take the Antabuse and talk to [Mr D]. When she was asked why she consumed alcohol on New Year’s Eve, given her history of problems with alcohol, she claimed that she knew she was with a safe person in a safe environment and that she wanted to prove to herself that she could control it.
73.In her report dated 4 March 2015, the Ms L summarised her opinion in relation to the wife’s drinking as follows:
In sum, [the wife] minimised the extent of her abuse, her attempts at rehabilitation, the impact on her parenting and day to day life, and the risk of relapse during the clinical interview. It is clear from the collateral documentation that [the wife] has a longstanding history of alcohol abuse and that she has likely consumed somewhere between 1 to 3 bottles of wine most days, if not every day, from 2008 until late 2014. While it seems that there have been brief periods when [the wife] abstained from alcohol and sought treatment, the documentation suggests that she has relapsed soon after on each occasion. She has seemingly had multiple admissions for detoxification and rehabilitation, as far back as 2010 and as recently as September 2014. There is considerable evidence that she has consumed alcohol heavily since her most recent attempt at rehabilitation, including a CDT result of 4.3% in November 2014. While it is possible that this result was due to a three day binge, the timing of her self-confessed “lapse” does not marry up to the date of the testing and so it seems likely that [the wife] had multiple “lapses”, which likely equate to a relapse. Furthermore, given that she acknowledged drinking three bottles per day for at least three days, as recently as November 2014, this suggests a lack of control, despite knowing that her alcohol consumption was being monitored as part of the current proceedings. It also suggests a high tolerance for alcohol, possibly as a result of more regular drinking than she has indicated at interview. While the most recent CDT test is encouraging, it does not rule our (sic) ongoing alcohol use/abuse. Moreover, it is concerning that [the wife] went off Antabuse in preparation to drink alcohol on New Years Eve, given that Dr P had prescribed this drug and recommended abstinence. Thus, [the wife’s] consumption of alcohol since being discharged from rehabilitation is worrisome as it suggests a limited understanding about the extent of her problem and the risks involved. Her motivation and capacity to make long term changes and address her problems with alcohol are tenuous.
74.Ms L stated:
[Dr P], in his letter to the GP dated 23/8/2009, said that he first met [the wife] yesterday. At the time, [the wife] reported problems in her relationship and claimed that she drank between 2 to 10 glasses of wine each day, with her drinking being problematic over the past three years. He diagnosed her with Major Depression and Alcohol Abuse. When [Dr P] was spoken to in the telephone call, he said that he had not considered any other diagnoses and that he did not see any characteristics suggestive of borderline personality disorder or any other personality disorder. Indeed, he said that he had not seen any evidence of frequent change of mood, from happy to sad to angry within a short space of time. Rather, he said that the alcohol abuse likely caused mood lability, as did the difficult marriage. As such, he was firm in his diagnosis.
75.Ms L stated:
I concur with [the wife’s] treating psychiatrist, [Dr P], that her two primary diagnoses are Alcohol Use Disorder, Severe (303.90: DSM5) and Major Depressive Disorder, Recurrent, Moderate (296.32: DSM5) both psychiatric illnesses, according to the [DSM 5]. To that end, it is my view that [the wife] would benefit from Court ordered ongoing consultation with Dr P, and that he be provided with a copy of the current report.
76.In her report dated 4 March 2015, Ms L stated, “[the wife] acknowledged moderate problems with alcohol use but not at a clinical level. That is, she indicated that alcohol use has caused occasional problems in her life, which included difficulties in interpersonal relationships, problems on the job and/or alcohol use to reduce stress.”
77.She also reported:
… psychometric testing with [the wife] suggested that he (sic) was quite defensive and attempted to portray himself (sic) in a favourable light. This was consistent with the assessment process. Although she denied any serious clinical problems, she acknowledged mild problems with alcohol. These responses were consistent with her account at interview, which highlight her limited insight into the extent of her alcohol problems. Further, her limited motivation to engage in treatment or change, raises concern about her understanding that alcohol abuse is a chronic and debilitating disorder. While there was no indication of a personality disorder, [the wife’s] personality attributes of poor assertiveness, failure to perceive threats or consequences and her inability to self-discipline, likely account for her current issues with alcohol and her difficulty complying with treatment recommendations.
78.Ms L summarised the records of the Department of Family and Community Services (“FACS”) as follows:
Perusal of the records from FaCS indicated that a variety of people have made notifications. Mainly, the concerns relate to [the wife’s] alcohol abuse, however there was (sic) two notifications about [the husband’s] alleged use of cannabis. The ambulance officers appear to have made a notification regarding [the wife] being intoxicated, there being broken sine (sic) glasses shattered on the floor in the kitchen and lounge room and empty wine bottles in the kitchen. [The wife] was allegedly saying “I want to die…who would wanna live my life?”.
79.She reported that a meeting was convened by FACS on 21 July 2014, in relation to the care of the children and their progression, attended by a FACS case worker, social worker from Q Hospital, Senior Constables from Suburb Z police, the principal of HH School, Mr and Ms U and Ms Ploughman’s sister, Ms Lyn Farmer.
80.She reported:
I also note that the notes taken in the “Interagency case discussion record”, indicated that [the wife] was not present, suggesting that she was invited but declined. One of the main plans appears to have been for [the husband] to initiate Family Court proceedings. The school apparently “strongly” recommended that [the husband] have the primary care of the children. The police apparently agreed to attend the school if she is intoxicated. There was a reference to the father taking [the wife] a bottle of wine to have with dinner, suggesting that he has enabled her alcohol use in the past.
81.Ms L commented on text messages received by the husband from B in the following terms:
I note that those text messages were sighted in [the husband’s] affidavit 28/6/2014, which appear to be dated 8 August 2013. In these text messages, [B] described her mother as being “drunk again”, and claimed that they had no food and that [the wife] later went to bed. She expressed fear about her mother’s anger, should [B] disturb her phone call. She noted that [the wife] forgot [C’s] karate lesson. On 6 October 2013, [B] texted [the husband] again and said that her mother was drunk again and had left them home alone.
82.Ms L prepared a second report dated 15 August 2016. The interviews for that report were conducted on 14 July 2016.
83.She was provided with 17 CDT test results for the wife between 19 January 2015 and 2 August 2016. She regarded five of those results as being equivocal and the balance as normal.
84.In relation to the wife’s consumption of alcohol, Ms L reported:
With regard to her current alcohol consumption, [the wife] advised that she has engaged in “controlled drinking” since the previous assessment, reportedly consuming a maximum of three glasses per wine (sic) on approximately one occasion per week. She acknowledged that she may sometimes drink more or less frequently but claimed that she sticks to the rules of three standard glasses per sitting. However, upon questioning, she acknowledged that she relies on restaurants pouring “standard” drinks. She also acknowledged that at times it is more difficult than others for her to stick to her maximum quota but she added that it has become easier for her the more distance she has and the more understanding she gains.
85.Ms L reported, “[The wife] claimed that she could easily agree to not drinking in front of the children, and she claimed that she has not done so for a long time because she does not want them to have any fears or to trigger any past memories for them.”
86.She reported that when B was interviewed, B said that her mother had told B that she is not drinking “at all”.
87.She reported:
During the present assessment, [the wife] advised that she has engaged in “controlled drinking” since the initial assessment, that she has continued to be monitored by her psychiatrist ([Dr P]) regularly and that she has continued to engage in psychotherapy with [Ms W]. She claimed that she has limited her consumption of alcohol to a maximum of three drinks, approximately once per week. Further, she advised that she has voluntarily submitted to regular CDT tests to supplement the Court Ordered tests and that the low results demonstrate that she has not engaged in heavy drinking. Perusal of the CDT results reveals that [the wife] has not exceeded the cut off of 1.9%, and the report of [Dr P] supports her assertion that she is in “remission” as she has not met the criteria of Alcohol Use Disorder for 12 months.
88.Ms L reported:
Although it is noted that [the husband] wants [the wife] to engage in abstinence, and that he has concerns that she is unable to maintain controlled drinking, there is no way of enforcing abstinence or predicting the risk of relapse. My view at the time of writing the initial report was that abstinence for at least six months would have been prudent, given the extent of her problems with alcohol abuse and the risk of relapse, and I note that [Dr P] was of the view that she was not a good candidate for controlled drinking. However, if it is accurate that [the wife] has not exceeded three drinks two or three times a week (the model of controlled drinking) for over 12 months, then her risk of relapse in to Alcohol Abuse is reduced and the associated risk of harm to the children while in her care is also reduced.
89.She stated:
Thus, despite the potential that [the wife] has lapsed and exceeded the set limits of three drinks (possibly including the occasion when [B] found her upstairs with the door open), the CDT tests indicate that she has not relapsed as she has not engaged in a pattern of heavy drinking since November 2014. As such, it is my view that her risk of relapse has reduced since the initial assessment and that the children would not be at appreciable risk of harm spending time with their mother unsupervised.
Having said that, however, some concern remains about [the wife’s] insight and understanding about her history of alcohol abuse and her capacity to take responsibility for the situation she finds herself in. These raise the risk of relapse. Specifically, [the wife’s] assertions in her recent affidavit that there was no basis for CDT testing or supervision suggest poor insight and understanding about the risks she posed to the children’s safety and well being. Similarly, her minimisation of historical alcohol abuse to [Ms II] in May 2016, as well as her externalisation of blame in the current assessment suggest that [the wife’s] insight in to the impact her behaviour has had on the children is emerging but not fully developed. To that end, she would benefit from ongoing therapeutic intervention and CDT testing.
90.In cross-examination about her drinking, the wife said that she does not have a problem with alcohol, and that there is a potential problem but that problem is managed.
91.The wife did not concede that she was, or had ever been, an alcoholic. When asked “You did not suffer from that disease?” the wife replied “No”. She said words to the effect, “I am not an alcoholic. Not now, never was”.
92.The wife’s evidence in cross-examination will be further examined in the context of concerns about the reliability of her evidence.
THE EVIDENCE OF DR P
93.Dr P was not required for cross-examination but objection was taken to those portions of his two reports which strayed outside the evidence which could be given by a treating doctor. It was clear on the face of Dr P’s reports that they were written by him as an advocate for the wife. The first report ended with an entreaty to the Court to restore the children to the care of the wife.
94.It was also clear that Dr P had not been provided by the wife with the information that was available to Ms L and that his report was based on her self-reporting.
95.For example, in his report dated 14 October 2015, Dr P stated that the wife had remained sober for two months following her discharge from T Clinic on 19 September 2014, after which she had briefly relapsed. What Dr P was not told was that the wife had told T Clinic that she had remained sober for two to three weeks then relapsed. He was also not told that the wife had purchased alcohol on 30 September 2014, 1 October 2014 and 9 October 2014.
96.Dr P listed the stressors that had contributed to the wife’s drinking and her inability to maintain sobriety. Many of those stressors still exist.
97.When Dr P commented on the results of CDT testing in 2015, he apparently had not been provided with the high reading in January 2015.
98.Significantly, Dr P did not explain why, having made a strong recommendation that the wife was not a candidate for controlled drinking and that she must abstain from drinking, he seemingly, as at 14 October 2015, condoned her controlled drinking.
THE UPDATED REPORT OF THE SINGLE EXPERT DATED 27 JULY 2017
99.On 24 July 2017, the single expert Ms L interviewed B, now aged 15, and C, now aged 12, for the purpose of ascertaining their views. She also spoke briefly with each of the parents.
100.C told the single expert that he enjoyed spending more time with his mother. He said that both his mother and his father attend his soccer game occasionally but do not speak to each other while they are there. C said “It is a little weird” but that he has gotten used to them not speaking. C told the single expert that when he is at his mother’s home he feels happy and safe. C denied that there had been any problems or difficulties over the past year. He said that B is usually present when he spends time with his mother, although she sometimes goes out with friends. C said he feels equally fine when he is with his mother alone or when B is there.
101.C told the single expert that he had not seen his mother drinking alcohol which made him feel “better” and that it had been “bad” when she used to drink. C acknowledged that he missed his mother when he did not spend time with her and stated that he enjoys the closeness of their relationship.
102.C told the single expert that he liked spending time with his father but that if he were to spend less time with his father, their relationship would not change because he would continue to see him and do activities with him. The single expert reported that C felt equally safe with both of his parents.
103.In relation to the communication between the parents, the single expert reported:
When [C] was asked about the communication between his parents, he said that they text each other. He explained that they typically ask each other about any arrangements but said they sometimes ask him to talk to the other parent. [C] explained that he has his own phone and that he is free to talk to either parent at any time. Although he thought that his parents do not like each other much, he said that they do not speak negatively about each other in front of him. He was “fine” with his parents’ level of communication.
104.The single expert reported:
When [C] was asked about his wishes, he said that he would like the arrangement to be “pretty even” between his parents so that he could see them both. He suggested splitting his week, such that he spent four days with his father in one week then four nights with his mother the next week. … When he was asked why it was important for him to spend equal time with them, he suggested that he likes seeing them both and that they both help him in different ways. … Neither of his parents reportedly say what they would like but he suggested that they would probably both like more time with him, and although he felt “a little bit” of pressure he said that he does not think about it too much.
[C] was then asked how he would feel in a variety of different parenting arrangements. If the parenting arrangement remained as it is now, [C] said that he would feel “a little bit disappointed” but it would not be too bad because he still gets to see his mother. If the arrangement was that he lived primarily with his father during the week but had more time with his mother on weekends, he considered that it would be “okay but not great” because he would want to see his mother during the school week. If the parenting arrangement was an alternate week arrangement, such that he stayed for one week with his mother and another with his father, [C] said that it would be “okay but a bit too long” to be with one parent and not see the other. If the arrangement was that he was living primarily with his mother and seeing his father on weekends, he said that it would not be “terrible” but would not be great and that he would still prefer a more equal arrangement.
When [C] was asked about his wishes in the future, as he advances in high school, [C] hypothesised that it might be harder with more school to have a split week arrangement. However, he thought that by then his parents would probably let him work out another arrangement that might better suit.
If [C] had the opportunity to speak to a Judge directly, he said that he would say he wants to see his parents more equally.
105.B told the single expert that, of recent times, the arrangements have been “loose” and she stays where she likes depending on her commitments. B estimated that she spends about 60 per cent of her nights with her father and 40 per cent with her mother. B told the single expert that she spends time with her mother at the same time as C but also additional time. The single expert reported:
She understood that she is supposed to be in the same arrangement as [C] but she said that she misses her mother and it is not enough time with her, which she finds “frustrating”. If and when she does want to see her mother, she reportedly tells her mother and then advises her father. She claimed that [the husband] is “normally okay” with it but he prefers her to “stick to the Orders” and not “get in trouble”.
106.In relation to her mother’s use of alcohol, B told the single expert:
… her mother does not drink alcohol in front of her because she knows that [B] does not like it. She explained that her mother’s “addiction is in the back of [her] mind” and that she would feel “not exactly unsafe” if her mother consumed alcohol, inferring that she would feel apprehensive. [B] explained that she spends time with her mother’s relatives, which she reportedly enjoys and she did not believe that her mother is in a relationship currently. Although she acknowledged that she has some arguments with her mother, she said that it is normally more a discussion and that there is no shouting. She denied any serious issues or difficulties with her mother and said that she has not been scared of her.
107.In relation to her father, B told the single expert:
At his house … there is not much conflict and she feels that she can always trust her father and seemed to infer that he was dependable. … She denied any serious problems or issues and could not think of anything that she would want to be different at his home.
108.B was also asked about the communication between her parents. The single expert reported:
… [B] said that there used to be more tension between them in the past because of the Orders and her father was more “protective” then, but she believes that they do not like each other. She said that they do not talk to each other but that they text each other. Like [C], she said that they typically communicate directly but she said that they sometimes communicate through [B]. She also said that she has her phone and she is free to talk to either parent when she likes and she denied being limited by either parent.
109.The single expert reported:
When [B] was asked about her wishes, she said that she would like more “balanced” time. She denied feeling any pressure from either of her parents about her wishes. Her proposal is for one week on and one week off, which she thinks would work best for her because she would have the entire week of school with one parent and then be able to change over on the weekends. She also considered that a split week arrangement would also work. She would reportedly like to have the same arrangements as [C]. She explained that she does not like to leave him, that she loves him, that he is her little brother and she therefore wants to have the same parenting arrangements as him. She said that they do not talk much about it but she thinks that he likes the idea of it being more balanced too. Although [B] had not thought about school holidays, she thought that they should reasonably be split between each parent too.
110.B told the single expert that if the arrangements remained as they were now, she would be frustrated and would probably make her own arrangements, but she “reiterated that she does not like leaving [C] and she intimated that he feels the need to obey the Orders more strictly.” If the arrangement was that she was living primarily with her mother, B told the single expert that she “does not like that idea either”.
111.The single expert reported that “Overall, [B] indicated that she wanted to divide her time equally between her parents. Although she wanted some flexibility, she also likes ‘the idea’ of her parents knowing their routine.” B told the single expert that she would follow the Orders that the Court made unless she “really hated them”, in which case she would do whatever suited her. B suggested to the single expert that her parents have not been very good at negotiating changes in the arrangements and suggested that they would probably not be able to do so in the future.
112.The single expert said that in her view, the children’s wishes should be given considerable weight given their age, level of maturity, and the absence of any signs of coaching, with the caveat that the wife has in fact continued to engage in controlled drinking and the children have not been exposed to any child protection risks. Further, she said, the children are older now and better able to engage in self-protective behaviour. The single expert recommended that the children would benefit from spending increased time with their mother, ideally in an equal care arrangement. She said that a split week arrangement over a two week cycle would best suit C for the next year or two, but expressed her concerns about the capacity of the parents to manage such an arrangement due to their history of conflict and mistrust.
113.The single expert concluded:
Furthermore, a week about arrangement would better suit [B] at her age, and it is important for the siblings to have the same arrangements. A week-about arrangement would have another advantage of allowing parallel parenting and reducing the need for cooperative parenting. To my mind, it is imperative for the children’s emotional well being that the legal proceedings are finalised. They have experienced several years of litigation, which has undoubtedly been stressful. Ideally, the parties would come to a mutual arrangement about the parenting arrangements moving forward, ideally through mediation, so that the children could feel confident that their parents were agreeable to any parenting arrangement made.
114.In cross-examination, Ms L said that B believes her mother is abstaining from alcohol and that she did not know if B’s wishes would be different if she were aware that her mother had continued drinking.
MR D
115.The wife formed a relationship with Mr D at least by 2013. In relation to Mr D, Ms L reported that at the time of the interviews on 10 February 2015, the wife was in a relationship with Mr D which she described as “very healthy, supportive and loving.” She said that the relationship had continued for almost two years and that they had lived together for three or six months. At the time of the interviews, Orders had been made restraining the wife from allowing Mr D to come into contact with the children.
116.Ms L reported:
[The wife] advised that the Orders to prohibit [Mr D] from having contact with the children are “ridiculous”. While she acknowledged that [Mr D] had a conviction of taking a photo of an adult sunbathing nude or semi-nude, and she also acknowledged that this young woman was his previous girlfriend’s daughter, she claimed that the young woman asked [Mr D] to take the photos to give to her boyfriend. She then allegedly pressed charges, according to [the wife]. When the appropriateness of these photos was explored with [the wife], she claimed that there may have been other reasons that the girl asked [Mr D] to do this, including her being a “femme fatale” or wanting [Mr D] out of her mother’s life. She added that [Mr D] saw himself in a fatherly role for this young woman and while the court sees him as a risk to her children, [the wife] does not. She claimed that it was the only conviction or allegation of a sexual nature made against [Mr D] and that this occurred six years ago. She intimated that she trusts [Mr D], that he gets along very well with [C] and [B], and that she wants the orders removed immediately because he has done “nothing but support the children”.
117.Ms L was able to view Mr D’s criminal record. She stated:
… he has been charged with Assault Police and Resist Arrest in 1993, Negligent Driving in 2001 and Film Person’s Private Parts Without Consent in 2009. The police events, dated 12/12/2009 provide a more thorough account of the incident, and outline that [Mr D] took photos of his girlfriend’s daughter on two occasions without her consent, while she was sunbathing on her bedroom balcony with her curtains closed. [Mr D] acknowledged that he took the photos for his own use and the photos were described as being close ups of her vagina and breasts as well as full body shots. It seems that the girl’s mother called the police to advise of the incident and that they requested [Mr D] have no further contact with the family.
118.Ms L further reported that the wife told her that Mr D speaks to the children on the phone sometimes.
119.Ms L reported:
[The wife] described a positive and healthy relationship with [Mr D] currently. Indeed, she claimed that he is supportive and appropriate with her and the children. However, her minimisation of [Mr D’s] convictions related to taking naked photos of his step‑daughter are of concern as she has seemingly not considered the safety of [B] as a potential risk. Given that the victim was a previous partner’s daughter, and that [Mr D] admitted to the offence and was charged, it is worrisome that [the wife] has not taken a more protective stance with regard to her children. [The wife’s] comments suggest that she has high relationship needs that may overshadow her ability to be a protective ally for the children.
120.The wife conceded that, when she told Ms L that Mr D was a supportive person in her life because he did not allow her to drink, that was not true.
121.The wife had proposed that Mr D be a supervisor of her time with the children.
122.In cross-examination, the wife said that she regards Mr D as a friend and still sees him socially. She said that she has a positive view of Mr D, and regards him as having had a positive influence in her life.
123.In answer to questions about Mr D’s criminal conviction, the wife said that she was not concerned about it. She said that she was aware that he had been charged in relation to offences against a teenage girl but qualified that admission by stating that the girl was 18 and thus an adult. When asked whether the age of the vi ctim made a difference to her attitude, she said that it did. She maintained that there is a difference between an offence against an 18 year old girl and a 15 year old. I note that B is 15.
124.She said that she did not know the details of the police report because she had not read them, but she agreed that she had told Ms L that the prohibition against Mr D being in contact with the children was “ridiculous”.
125.She said that she no longer held that view. Asked, on a number of occasions, when she had changed her mind, she repeatedly said that she could not answer that question.
126.In cross-examination she said that the offence was not justified if the victim was a “femme fatale” as she had told Ms L and she said that she had no recollection of saying that to Ms L. In cross-examination, she said that she did not know what she had meant by her statement to Ms L. She agreed that although the Court had requested that a risk assessment be completed in relation to Mr D, that had not occurred.
RELIABILITY OF THE WIFE’S EVIDENCE
127.The wife, in her affidavit, made numerous complaints about the husband’s behaviour, particularly in relation to allegedly withholding the children from her. The husband was cross-examined in relation to those complaints. In answer to those questions, the husband said that he and the wife had communicated by text throughout the whole period after separation and that he had kept and compiled the text messages. He said that the folder containing the texts was in Court and available for inspection and that, if the texts were read, they would demonstrate that he had not behaved in the manner alleged by the wife.
128.Despite the husband’s offer of the texts, no call was made for them to be produced and, with an exception which will be referred to later in these reasons, they were not tendered.
129.The consequence of the husband’s evidence, which was not challenged by counsel for the wife calling for the text messages and putting to the husband that they did not support his version of events, is that I accept the evidence of the husband that, where his version of an event is different from that of the wife, the text messages would corroborate the husband’s version of that event.
130.Another instance of the wife’s evidence being unreliable is her evidence relating to the period immediately after separation. She deposed that the husband disappeared from the children’s lives for six months, until about February 2014. The text messages passing between the husband and the wife for that period were tendered. They show more than daily contact between the husband and the wife and numerous instances of the husband collecting the children, having them overnight and for more extended periods.
131.Of some concern is the fact that B told Ms L in July 2016 that her mother tells her that she is not drinking “at all”. That statement by the wife was not true then. Insofar as Ms L understands that B believes that her mother is not drinking now, that is also not true. The wife has continued to drink, although not in front of the children, for the whole of that period.
132.In cross-examination, the wife conceded that numerous statements made by her in earlier affidavits were incorrect, particularly in relation to her drinking. She also conceded that statements made by her solicitor, on her instructions, to the effect that she had abstained from alcohol for specified periods, were incorrect.
133.The wife conceded that, when she told Ms L that Mr D was a supportive person in her life because he did not allow her to drink, that was not true.
134.The wife denied that she had ever threatened to self-harm when there was ample evidence from health professionals and unchallenged evidence from the husband (as to B’s phone calls) that she had.
135.I do not consider that the wife’s evidence was reliable.
THE ORDERS SOUGHT BY THE PARENTS
136.The parents agreed that they should have equal shared parental responsibility.
137.The husband’s position changed after reading the report of the single expert and at hearing he sought orders that the children spend time with their mother from after school Friday until before school Monday on each alternate week during school term and, in the second week, after school Tuesday until before school Thursday.
138.The wife’s position was that the children should live with each parent in a week-about arrangement with changeover taking place on Monday afternoon. She specifically sought no orders in relation to B. Ms L did not support the proposal that there be no orders in relation to B and it was not argued in submissions.
139.A different arrangement was proposed by the ICL which involved an equal time regime with the children spending, in the first week of each two week cycle, one night with the husband, two nights with the wife then four nights with the husband. In the second week, the children would spend three nights with the wife, two nights with the husband then two nights with the wife.
140.The ICL proposed a suite of ancillary orders to which both parents agreed, with the minor exception of a slight extension of time on special days which was advocated by the husband and to which neither the wife nor the ICL demurred.
CONSIDERATION
141.There is no dispute that the children will benefit from having a meaningful relationship with both of their parents. The issue is how their relationship with their mother can be maintained while minimising the risk to the children resulting from her relapsing into alcohol abuse.
142.Where there is a need to protect children from harm resulting from being subjected to any form of abuse, in which I include the consequences of the wife’s past abuse of alcohol and of her potential relapse into alcohol abuse, the Court is required to give greater consideration to that risk than to the benefit of their maintaining a meaningful relationship with her.
143.It is difficult to assess the quantum of the risk of the wife’s relapsing. Her own evidence, as I have explained, is not reliable. The wife’s psychotherapist, Ms W, did not give evidence. Dr P does not give any opinion about the likelihood that the wife will relapse and does not explain why it is safe for her to engage in controlled drinking rather than, as he recommended, total abstinence.
144.Ms L, in cross-examination, expressed her concern that the wife was not abstinent from alcohol which, she said, would have been the preferable path. She said that there is a potential that any stressors in the future could trigger a relapse into alcohol abuse.
145.Ms L said that if the wife has not demonstrated that she has insight into the effect of her alcohol abuse on the children and has not taken responsibility for her drinking and its effects, the chances of relapse are higher. Ms L also said that the risk of relapse is less if the wife continues her engagement in therapy.
146.In cross-examination, Ms L said that she had not read much in the wife’s affidavit material, and particularly her trial affidavit, about her responsibility for her alcohol abuse and her part in the damaging effects on the children of her behaviour. She agreed that the wife has consistently lacked insight into her own behaviour and its effects. Ms L said that the wife has consistently blamed others for her drinking.
147.Ms L said that the wife had minimised her drinking in the interviews for both the first and second reports which caused Ms L concerns about her insight into her problem and thus her capacity to change. She said that the fact that the wife disagreed with both Dr P’s diagnosis and hers was of some concern and not a good prognostic indicator.
148.Ms L was asked to describe the risks to the children if the wife relapsed into alcohol abuse. She said that there would be significant child protection concerns and psychological harm to the children. She also highlighted the connection between the wife’s abuse of alcohol and her risk taking behaviour when affected by alcohol giving rise to a risk that the children might be physically harmed if the wife were abusing alcohol.
149.In cross-examination, the wife said that she would be relieved when the litigation was finished and she no longer had to undergo CDT testing because she would no longer have to worry about the consequences of drinking and being “caught out”.
150.There is no proposal for ongoing testing of any sort and the Court is left in a situation where there would be no monitoring at all of the wife’s consumption of alcohol except by the children. It is entirely inappropriate to place the children in that position.
151.I do not accept the statement by Ms L in her final report that:
If the evidence is that [the wife] has continued to engage in controlled drinking and the children have not been exposed to any child protection risks, the previously identified risks to the children’s safety and/or well‑being in their mother’s care are no longer an issue. Further, the children are older now and would be better able to engage in self‑protective behaviour.
152.The orders which are made for the children to spend time with a parent should not be reliant on the children being able to protect themselves from any damaging behaviour by that parent.
153.While I cannot precisely quantify the level of risk of the wife relapsing into alcohol abuse, I must assume that there is a risk.
154.In cross-examination, Ms L said that there are no child protection risks for the children in the care of the husband.
Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
155.The children’s views have been conveyed by Ms L in her final report to which extensive reference is made earlier in these reasons. I accept that B wants a “more balanced” arrangement and expressed a preference for a week‑about arrangement, and that C wants to spend more time with his mother, expressing a preference for the time to be “more equal”.
156.Ms L said that considerable weight needs to be given to the children’s wishes given their ages, level of maturity and absence of any signs of coaching.
157.B’s preference to have the same arrangement as C carried with it the inference that B feels that she needs to be with C when he is with his mother as a protective factor. B told Ms L that her mother’s alcohol addiction “is in the back of [her] mind” and inferred that she would feel apprehensive if the wife were drinking. It was clear from B’s discussions with Ms L that she is acutely aware of the problem of her mother’s drinking and understands that she can extricate herself from any situation where she feels uncomfortable by simply returning to her father’s home.
158.Ms L said, in cross-examination, that she could not be sure that B’s wishes would be the same if B knew that her mother was still drinking and had lied to her when she told B that she was not drinking at all.
The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
159.The children love both of their parents.
160.C told Ms L that if he was sad, he would talk to his father, and if he was sick, he would want both parents. I accept the evidence of Ms L that C has a strong attachment to both parents and understands their individual strengths.
161.B told Ms L that “she feels she can always trust her father and seemed to infer that he was dependable”.
162.I have no doubt that B loves her mother and wants to spend more time with her but she did not express to Ms L the same feelings of dependency and reliability as she expressed about her father.
163.B has a safe haven with her father and is able, if she needs, to remove herself from her mother and return to him, taking C with her.
The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
164.The wife has not contributed to the children’s maintenance since they commenced to live with the husband.
The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
165.There is no proposal to separate the children from either parent. On any version of the parties’ competing positions, both of the children will spend more time with their mother.
166.B has stressed her wish to spend the same time with her mother as C does, although she seems also to suggest that she will spend time with her mother only when it suits her and that she would probably make her own arrangements. B will be 16 in December and her attitude is quite appropriate.
167.B told Ms L that she does not like leaving C with the wife, I infer because she is not sure he is safe.
168.I note that, a few weeks ago, when B elected to return to the husband’s home on Saturday evening, C returned with her and they both elected not to return to the wife’s home the next day.
The practical difficulty and expense of a child 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
169.At the present time, the husband and the wife live in the same suburb about 300 metres apart. The children pass easily between their homes and they can walk from one home to the other.
170.That position is about to change.
171.The home in which the wife is living will be sold and the proceeds divided. The husband will remain in his present rental house. The wife will have to move.
172.I accept that she will do everything possible to remain in the same general area. Both children will be attending the same school next year and the wife will rent accommodation which will permit that to continue.
173.However, it is unlikely that the parents will continue to be living 300 metres apart.
174.It cannot be assumed that the children will be able to simply walk to their father’s house if they are not happy to remain with their mother for any reason. While the parents might still live in the same or adjoining suburbs, the children may well have to catch one or more forms of public transport to move from one house to the other, or to telephone the other parent and arrange to be collected.
175.The close proximity of the parents’ homes has been put forward as a safeguard for the children by the wife and the ICL. That proximity cannot be guaranteed to continue.
The capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
176.The husband has demonstrated that he has the capacity to take care of the children and provide for their needs.
177.The wife’s capacity to provide for the children’s needs must be viewed in light of her attitude to Mr D, of which more is said later in these reasons, the risk of her lapsing into alcohol abuse and her expressed lack of insight into the effects of her drinking on the children.
178.If she is sober, she can provide for their needs, although the concerns expressed later about her attitude to Mr D as a suitable person to be in the children’s lives, remain.
179.If she lapses into alcohol abuse, she cannot care for herself, let alone the children.
180.Over the past three years the husband has provided these children with stability and will continue to do so.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
181.Whilst the wife, and her supporting witnesses, in all of their affidavits and in her interviews with Ms L, are critical of the husband for being an absent parent and a neglectful one, his alleged failings pale into insignificance when compared with the whole of the history of the wife’s alcohol abuse as revealed by the material produced on subpoena.
182.The other matter that causes real concern about the wife’s attitude to parenting is her willingness to have Mr D involved with the children.
183.The concerns about her ability to protect the children are exacerbated by her statement to Ms L that Mr D “saw himself in a fatherly role” in relation to the daughter of his ex-partner, of whom he was charged and convicted of taking nude photographs. She had not troubled herself to ascertain the precise details of the charges and, in particular, she asserted that the victim might have been to blame. She was either not aware, or not concerned, that the version of the events that she gave Ms L, that is, that the victim had asked Mr D to take the photos for her boyfriend, was contrary to Mr D’s admission that he took the photographs without the victim’s consent and for his own use.
184.Her statement to Ms L that it was “ridiculous” that Mr D was prohibited from having contact with the children is most concerning. That statement was made in February 2015, at a time she claimed to Ms L that she was “largely abstinent from alcohol since October 2014”. It suggests that, at least at that time, the wife saw nothing wrong with Mr D taking explicit, nude photographs of a young woman to whom he stood in a fatherly relationship. That she did not know or did not admit that the photographs were taken without the victim’s knowledge and for his own gratification only raises the level of concern about the wife’s understanding of the need to protect her children, particularly B, from such behaviour.
EQUAL SHARED TIME
185.The wife and the ICL both propose that the children should spend equal time with each parent, albeit in different regimes.
186.Counsel for the husband, in cross-examination, put to Ms L that research shows that equal shared time is not indicated in families where there exists:
· High conflict;
· Safety concerns for the children due to alcohol abuse;
· No parental alliance;
· No ability to get along in a business-like manner;
· No ability to share in making child focused arrangements.
She generally agreed with that proposition.
187.There is no doubt that all of those factors apply in this family. The children both spoke to Ms L about their parents’ inability to communicate and to be flexible and reach compromises. The parents do not talk. They communicate by text only.
188.The wife continued a litany of complaints against the husband, as recently as 24 July 2017 when she felt the need to tell Ms L who was preparing a wishes report, about the husband’s short comings. She regards the husband as abusive, restrictive and proscriptive.
189.Ms L said that the research provides “guidelines” only and the guidelines do not fit every family.
190.However, Ms L said that her recommendation for a week‑about arrangement was subject to a finding that there was no risk to the children in such a regime.
191.It was not clear why the wife and Ms L both maintained that a week‑about arrangement was appropriate when C was clear that it did not meet his wishes. The wife was cross-examined extensively by counsel for the ICL on that issue but did not seem to be able to give an answer. Although Ms L was not specifically asked, the tenor of her evidence was that it was easier and involved less changeovers.
192.I have considered the proposal of the ICL which meets C’ need to see both parents each week but, because of the number of changes each fortnight, does not provide the stability and certainty that, according to Ms L, these children need.
193.As I have made clear in these reasons, I am not satisfied that there is no risk to the children in spending extended periods of time with the wife. The orders I will make will ameliorate that risk to the extent possible, whilst still allowing them to spend increased time with their mother.
CONCLUSION
194.The task with which the Court is confronted is to ensure that the children’s relationship with their mother is maintained by their spending time with her to the greatest extent possible and, at the same time, protecting them from the risks of her relapsing into abuse of alcohol.
195.It is not possible, without a rigorous testing regime, to protect them entirely.
196.It is not acceptable to rely on the children to detect if their mother is drinking and remove themselves from her proximity.
197.Since she continues to drink when the children are not with her, it is preferable that the periods they spend with her are split. That also satisfies C’s need to see each of his parents each week. Although the wife, in evidence, said that she can abstain from alcohol for two to three weeks at a time, it seems she does not choose to do so and there is only her evidence that this is so. Whether she can abstain for a week at a time is unknown. It is preferable if her ability to do so is not tested, thus putting the children at risk.
198.I am of the view that the regime proposed by the husband, which was also the regime proposed by Ms L in her second report, provides for the children to spend substantially more time with the wife than they now do while not extending the periods for so long that they place her ability to remain sober under strain.
199.I note that the husband and wife agreed to the proposal of the ICL in relation to school holidays, which enable the wife to spend a block period of up to one week with the children during the Term 1, 2 and 3 school holidays, and two weeks in the December/January school holidays. While I consider that some risk attaches to this arrangement, I propose to allow it because the parties all agree that it is appropriate.
PROPERTY
200.The husband sought orders which would allow the wife to retain the former matrimonial home if she were able to raise the necessary funds. It is conceded that she cannot. The husband therefore sought a sale of the former matrimonial home and a division of the proceeds of sale as to 60 per cent to him and 40 per cent to the wife. He sought orders in relation to the SMSF that would require the wife to retire as a director and that the assets of the fund be divided equally in specie. Otherwise, he would retain the assets in his possession including his half share of Suburb N.
201.The wife also sought to retain the former matrimonial home but conceded in cross-examination that she realistically cannot do so. In a Minute of Orders attached to her case outline, she sought orders for the sale of the former matrimonial home and the division of the net proceeds of sale as to 40 per cent to the husband and 60 per cent to her. In relation to the SMSF, she proposed that it be retained by the husband and her interest be transferred to him.
202.As can be seen from the historical narrative, there is little factual dispute between the husband and the wife.
203.Both parties conceded, through counsel, that the primary focus of the preparation of the evidence had been on the parenting matters and there were a number of areas where evidence in relation to financial issues was scarce or entirely lacking.
204.At the commencement of the trial, they tendered a joint Balance Sheet. By the commencement of submissions, the areas of dispute had been reduced.
205.Both parties agreed that both paid legal fees and unpaid legal fees should be disregarded.
206.Both parties agreed that the husband had a debt to his mother and his uncle.
207.There was a dispute in relation to the debt the husband asserted to be owed to his brother.
208.The wife did not agree that the credit card debts of each of them should be included as liabilities.
209.The husband wanted to divide the SMSF equally in specie. The wife wanted the husband to take the whole of the SMSF.
210.The husband wanted the money that the wife had spent from the accounts held for the children to be repaid. The wife opposed that application.
211.It is necessary to resolve the issues of the debt to the husband’s brother and the treatment of the credit cards to establish the asset pool.
THE DEBT TO THE HUSBAND’S BROTHER
212.When the husband and the wife separated, the husband, with the agreement of his brother, moved into M Street which had previously been rented for $650 per week. In his affidavit sworn 20 July 2017, the husband deposed that he owed his brother rent at the rate of $325 per week for 86.7 weeks totalling $28,177.50.
213.After the husband moved out of M Street, the property was tenanted for $700 per week. The husband, with the agreement of his brother, received all of the rent which was collected by the managing agent. The husband asserts that half of the amount he received from the rental of M Street during that period is $30,967.10, which must be paid to his brother.
214.Thus the husband deposed that he owes his brother a total of $59,084.60, although the correct figure appears to be $59,144.60.
215.The husband’s evidence in relation to the alleged debt was not challenged in cross-examination. He said in cross-examination that his brother had not commenced proceedings against him for recovery of the debt but that he fully intended to repay his brother once he was able to do so.
216.The husband’s brother swore an affidavit and was cross-examined. He said that he expected to be paid the money he was owed by his brother when the husband was in a position to do so, after the finalisation of the property settlement. He said in cross-examination that there was an agreement between the two of them that the husband would repay the rent once the Family Law proceedings were finalised and the husband had the money.
217.I accept the evidence of the husband and his brother that there was an agreement as they both deposed.
218.Counsel for the wife submitted that the husband’s brother was not entitled to rent foregone. It was submitted that the principles relating to occupation rent should be applied and that the husband’s brother is not entitled to occupation rent.
219.I do not accept that submission.
220.This was not a case of ouster of one joint tenant by another. This was a case where there was specific agreement that one owner could occupy a property provided that he paid rent.
221.The debt to the husband’s brother will be included.
CREDIT CARDS
222.There was no evidence of the level of credit card debt of either party at separation.
223.On behalf of the husband, counsel submitted that there was no suggestion that the husband had drawn on his credit cards recklessly or extravagantly. He had used the credit cards to pay the reasonable living expenses of himself and the children.
224.The husband had changed employment from the private sector to the public sector to accommodate his increased responsibility for the care of the children. As a consequence, he earned less. In addition, because the wife remained living in the home, the husband was obliged to pay market rent. After the husband and the children left M Street, his rent was in excess of $1,000 per week and his salary was $1,962 per week.
225.The wife made no contribution to the children’s expenses in circumstances where they lived with the husband and spent supervised time with the wife, until August 2016, then only one overnight each fortnight.
226.In those circumstances, the husband’s credit card debts should be included as liabilities, as should those of the wife.
227.I therefore find the assets and liabilities of the parties to be:
ASSETS
Husband and Wife E Street, Suburb F, NSW (former matrimonial home) $2,125,000.00 Husband Half interest in M Street, Suburb N NSW $687,500.00 Husband CBA account …74 $25,948.00 Husband Motor vehicle 1 $3,500.00 Wife 120 ANZ Shares @30.08 $3,609.60 Wife 120 AMP Shares @ 5.27 $632.40 Wife Motor vehicle 2 $1,800.00 Husband Household contents $2,500.00 Wife Household contents $2,500.00 Husband IG Markets CFD Account $1,346.00 Husband Half interest in joint CBA Complete Access Savings account no …23 with Mr JJ Ploughman $1,366.00 TOTAL $2,855,702
LIABILITIES
Husband and Wife Mortgage to St George Bank upon Suburb F property $419,670.00 Husband Mortgage to Ubank upon Suburb N property $303,520.00 Wife St George Visa as at 23.10.2016 $7,948.00 Husband Citibank $39,547.00 Husband CBA Visa $47,929.00 Husband and Wife St George Offset Account linked to St George Home Loan Account overdrawn $460.36 Wife O Clinic $3,200.00 Wife Medical services provided to Wife $950.00 Husband and Wife Rates owing in relation to Suburb F property E$7,000.00 Husband Rates owing in relation to the Suburb N property (half liability) $1,018.00 Husband Monies owed to Mr JJ Ploughman for unpaid rent of the Suburb N property $59,084.60 Husband Monies owed to Ms KK Ploughman $7,000.00 Husband Monies owed to Mr LL $4,345.00 TOTAL $901,672
SUPERANNUATION
Husband and Wife who each hold one share in G Pty Ltd and are members of fund G Pty Ltd as Trustee of the Ploughman Family Trust Superannuation Fund ABN …12 CommSec Shares $292,428
Macquarie Cash Management
$10,948
Commonwealth Bank CDIA
$11,961Wife BT Managed Fund $60,000.00 Husband and Wife who each hold one share in G Pty Ltd and are members of fund Shares in H Limited held by G Pty Ltd as Trustee for the Ploughman Family Superannuation Fund
$100,800.00 – If Shares are to be retained $142,600.00 – If Shares sold/bought back under Shareholder Agreement
228.Excluding the SMSF and the wife’s separate superannuation interest, the parties have net assets of $1,954,030.
229.Of that sum, the wife has assets of $8,542 and liabilities of $12,098, leaving her with net liabilities of $3,556.
HOW SHOULD THE SUPERANNUATION FUND BE DEALT WITH?
230.The SMSF contains assets in four categories:
· CommSec shares valued for the purpose of the trial at $292,428;
· Cash;
· Shares in HL.
231.The SMSF has 310,000 ordinary shares in HL. This represents 2.6 per cent of the total issued shares. The shares have been valued by the single expert, Mr MM on two bases.
232.On the basis of the formula in the Shareholders’ Agreement, Mr MM values the shares at $142,600. Mr MM, in his report stated, “The formula based method results in a value of $142,600. The formula represents the maximum amount HL would pay to buy back the shares or cancel them pursuant to a capital reduction. This value does not allow for a discount pertaining to minority shareholders.”
233.Mr MM, in his report, does not consider if, and in what circumstances, HL is likely to buy back the shares.
234.The husband in cross-examination said that HL have never bought back shares and is unlikely to do so.
235.In the alternate, Mr MM values the shares on the basis of what I assume to be Capitalised Future Maintainable Dividends (“CFMD”), and reaches a value of $100,800.
236.That value, too, might be susceptible to change in circumstances where Mr MM notes that there were no dividends paid in the financial years ended 2006 to 2013. In 2014, dividends were $813,200; in 2015, $1,017,718; in 2016, $1,236,781 and in 2017 (year to date) $448,660. Mr MM notes that those historical dividends cannot be considered an indicator of Future Maintainable Dividends.
237.The husband, in cross-examination, expressed real doubt that the HL shares would ever be capable of sale.
238.The wife’s proposal that the husband take the whole of the SMSF would have the effect that all of the risks and uncertainties associated with the value of the HL shares would be assumed by him.
239.The SMSF was established and maintained for the benefit of both of the parties.
240.In circumstances where there was no evidence that the transfer of the HL shares into the SMSF was objected to by the wife, it must be assumed that they thought at the time that the investment would be to their advantage. It may still prove to be so but, in the meantime, it is just and equitable that they share the risk.
241.The interests in the SMSF will be divided equally in specie but, as agreed, any liability for tax or penalties arising out of the husband’s failure to lodge returns in a timely manner will be his responsibility.
MONEY GIVEN TO THE CHILDREN
242.In cross-examination, the wife conceded that, after the birth of each of the children, the paternal grandmother gave her $8,000, asking her to put the money into a bank account for the child. She did so. It was not her money. The paternal grandmother, who was not required for cross-examination, deposed that, on each occasion, she said to the wife “This cheque is for [the child]. Open an account for [her/him].”
243.The wife conceded that, at the time of separation she had access to bank accounts in her name held on behalf of the children. At separation, there was $13,929.94 in the account for B and $16,484 in the account for C.
244.The wife held the money as trustee for each of the children.
245.Those accounts had their genesis in gifts from the paternal grandmother to the children at birth and subsequent gifts from other family members, including further gifts from the paternal grandmother. She has used trust funds for her own benefit and the money must be repaid.
246.The orders will require the wife to open an account in her name as trustee for each child and to refund the money and thereafter hold it until each child attains the age of 18 years.
247.There is presently $583.36 in the account for C and $2,433.69 in the account for B. Therefore the wife will be required to repay $15,900.64 to the account for C and $11,496.25 to the account for B.
248.The funds held by the wife in accounts in her name for the children have been removed from the Balance Sheet as they are not her funds.
249.I have not included the liability for the payment of those sums in the Balance Sheet as, to do so, would be to make the husband partially liable for their repayment.
SECTION 79(2)
250.The substantial asset of the parties is their equity in the former matrimonial home. They have separated and can no longer jointly use that property. They both ask that it be sold and the proceeds divided. Similarly, they have a joint SMSF which must be dealt with, either by division as the husband seeks, or by transferring the wife’s interest to the husband as she seeks.
251.It is, in those circumstances, just and equitable to make orders adjusting the interests of the parties in their property.
ONE POOL OR TWO POOLS?
252.Both parties provided extensive written outlines of argument in their case outlines and both made oral submissions, based on a two pools approach with M Street placed in a separate pool.
253.I propose to adopt that approach. I will therefore consider the contributions made by the parties to each pool separately.
254.The pool of assets, not including M Street will be the “First Pool”.
255.M Street will be considered separately.
CONTRIBUTIONS TO THE FIRST POOL
256.In his trial affidavit, the husband deposed that he had modest savings and a small superannuation interest at the commencement of co-habitation. He further deposed that, when the former matrimonial home was purchased some five years later, he contributed $120,000 “from savings”. In cross-examination, he said that he had been engaged, in his professional capacity, in a development project by other family members and the $120,000 represented, at least in part, the payment he received for that work.
257.The wife had modest assets at the time of co-habitation.
258.If the work on the development project was substantially done after the parties commenced co-habitation, then it is a contribution of joint funds.
259.The evidence does not establish when the work on the development project was finished, how much the husband was paid, or when the payment or payments were made.
260.I am not satisfied that the deposit came substantially as a result of work done by the husband before the commencement of the co-habitation.
261.The husband was able to use his equity in M Street to secure loans which, at trial, totalled $303,520.
262.Thus, the significance of M Street is that it was both a source of income and a source of security for borrowings. The income from M Street and the use of M Street as security for loans is a contribution by the husband to this pool.
263.After separation, the wife and the children remained in the former matrimonial home until the children went to live with the husband in June 2014. From July 2013 until June 2014, the wife was the primary carer for the children.
264.From August 2014, the husband has been the primary carer for the children in circumstances where the wife, until August 2016, was having limited supervised time with them. Even after that time, the children spent no more than one night each fortnight with the wife and were otherwise in the care of the husband. There must be some adjustment to recognise that contribution.
265.In addition, from separation in 2013, the wife has lived in the former matrimonial home which is the most substantial asset of the parties. She has reduced the mortgage payments to an interest only payment so the principal owed on the mortgage has not been reduced during her occupation. Additionally, she has not paid the rates as they fell due resulting in the present debt of $7,000 which will be paid when the property is sold. The wife herself gave evidence that, in order to rent a similar property, she will have to pay $900 per week as opposed to approximately $360 per week, which she currently pays in interest. The husband, as a result of the wife’s occupation of their jointly owned property, has had to pay rent.
266.The husband did not stand by and allow that to happen. He brought an application to the Court to sell the former matrimonial home which the wife successfully resisted on the basis that it was her application that the property be transferred to her.
267.Taking all of those factors into account, I assess contributions to the pool which excludes M Street and the superannuation interests as to 57.5 per cent to the husband and 42.5 per cent to the wife.
268.The SMSF will be divided equally between the parties in specie.
CONTRIBUTIONS TO M STREET
269.The husband inherited a half interest in M Street, unencumbered, in 2005.
270.After the property was inherited, the husband and his brother spent about $10,000 on renovations. Otherwise, there was no work done on the property after its acquisition by inheritance. To the extent that the husband can be assumed to have contributed half of the costs of the renovations, from joint funds, the wife made a very small contribution to those renovations. That small contribution does not justify a finding that the wife made any contribution to M Street.
271.She does not assert any other relevant contribution.
272.The husband’s contribution to M Street is 100 per cent.
273.The net value of the husband’s share in M Street is $382,962 and it represents about 20 per cent of the overall net asset pool.
SECTION 75(2)
274.The SMSF will be equally divided and is not a factor that needs to be taken into consideration. However, the wife will retain her superannuation interest valued at $60,000, over and above the half share of the SMSF.
275.The husband has a greater earning capacity than the wife, he earns $1,962 and she earns, from her principal employment, $873. She does not work full time, and there is no evidence about her ability to do so. She may have the capacity to earn a greater income if she worked longer hours. Further, the wife, in cross‑examination, acknowledged that she works casually in the hospitality field and that she has not disclosed her income from that employment. I am unable to say what the wife’s income is.
276.The wife is nine years younger than the husband, who is 59 years old, and has a greater working expectancy.
277.The husband will have the greater responsibility for the care of the children who are now aged 15 years and 12 years.
278.Both parties will have to provide housing for the children as they will spend substantial and significant time with the wife.
279.There is no evidence that the wife has any intention to pay Child Support and it is likely that the husband will continue to be the parent who provides for the children’s financial needs.
280.The husband was obliged to leave private practice and take a lower paid job in the public sector because the children came into his care. However, during the marriage, the wife worked part-time because of her child care responsibilities. I do not propose to take this factor into account.
281.The most significant factor is that the husband will have M Street.
282.I propose to make an adjustment in favour of the wife, to her entitlements in the First Pool, of 10 per cent, resulting in an overall division of the First Pool of 47.5 per cent to the husband and 52.5 per cent to the wife.
CALCULATION
283.The First Pool includes the former matrimonial which is its substantial asset. A number of the liabilities accruing to the First Pool will be discharged upon the sale of the home. Those are the mortgage, the offset account and the rates. When the home and its attendant liabilities are excluded from the First Pool the remaining assets have a gross value of $43,202. The liabilities remaining total $170,004. Thus the balance of the First Pool has a net negative value of $126,802. The wife is responsible for 52.5 per cent of that amount or $66,571.05.
284.The wife has liabilities in her own name totalling $12,098. She must account to the husband for the balance of $54,473.05.
285.She does not have funds available to do so and thus that sum will be deducted from her share of the sale proceeds of the home and paid to the husband.
I certify that the preceding two hundred and eighty-five (285) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 August 2017.
Associate:
Date: 17/8/2017
Key Legal Topics
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Family Law
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