Prescott and Prescott
[2015] FCCA 66
•27 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PRESCOTT & PRESCOTT | [2015] FCCA 66 |
| Catchwords: FAMILY LAW – Father engages in financial abuse post separation – refuses to pay mortgage or child support – offer no explanation as to how wife and children are to survive financially – home repossessed – all equity lost in the former matrimonial home – father hostile and obstructive towards communication with the mother – father regards all Court events with contempt – contested parenting applications – no insight into his strongly held views about his “rights” which father places over and above the best interests of the children – father expressly states he does not care about communication with the mother – father directs his income into paying mortgage on new defacto’s home – vexatious applications for mother to pay him spousal maintenance and child support. |
| Legislation: Family Law Act 1975, ss.60 CC, 61DA, 65 DAA, 72(1), 75(2), 79, 118 |
| MRR v GR [2010] HCA 4 Stanford & Stanford [2012] FamCAFC 1 C & C [2005] FamCA 429 |
| Applicant: | MS PRESCOTT |
| Respondent: | MR PRESCOTT |
| File Number: | TVC 414 of 2012 |
| Judgment of: | Judge Willis |
| Hearing dates: | 29 & 30 July 2014 |
| Date of Last Submission: | 30 July 2014 |
| Delivered at: | Cairns |
| Delivered on: | 27 January 2015 |
REPRESENTATION
| Solicitors for the Applicant: | J. Hamilton & Associates Solicitors |
| Counsel for the Applicant: | Mr Fellows |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Ms Mayes |
| Solicitors for the Independent Children's Lawyer: | Greg Pohlmann Family Lawyer |
ORDERS
CHILDREN
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2005, Y born (omitted) 2007 and Z born (omitted) 2009 (“the children”) including but not limited to:
(a)a child’s education (both current and future);
(b)a child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name;
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the other parent.
That the children live with the Mother at all times other than when they spend time with the father pursuant to the terms of these Orders.
Father’s time with children – school terms
Subject to Order 10 herein, the Father shall spend time with and communicate with the children at all reasonable times as agreed between the parents and failing agreement as follows:-
(a)During the school term each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday or 9:00am Tuesday in the event that Monday is a public holiday or pupil free day.
Changeovers are to occur as follows:
(a)To and from the (omitted) Children's Contact Centre. In the event that the centre is closed the handovers will occur to or from the front of the Police Station in (omitted), currently located in (omitted);
(b)In the event that there are difficulties with any of the aforementioned locations, changeovers will always occur at a place nominated by the mother who shall have the sole discretion of determining the changeover location.
This regular alternating weekend time will be suspended during the school holiday periods referred to in these Orders.
Father’s holiday time with the children
The father will spend holiday time with the children as follows unless agreed in writing otherwise:
(a)The first half of all school holidays in odd numbered years and the second half in all even numbered years;
(b)The first half of the Christmas, Easter, June/July and September/October school holidays to commence at 9:00am on the first Saturday after the conclusion of the school term;
(c)The end of the school holidays will be 4:00pm on the Sunday immediately prior to the commencement of the next school term or year;
(d)The mid point is to be at 4:00pm on the second Sunday for the Easter, June/July and September/October school holidays; and
(e)The mid point for the Christmas school holidays is to be at 4:00pm on the fourth Sunday after the commencement of the school holidays.
In the event that either of the parents travel outside of Queensland with the children they will provide the other parent within fourteen (14) days notice of their intention to travel and shall provide details of where they intend to travel and contact details for the children in their absence.
Each of the parents shall be permitted to communicate with the children by telephone each Thursday that they are not in that parent’s care between 5:00 pm and 5:30 pm. The non-resident parent shall initiate the call and the other parent will facilitate the call.
The father shall ensure that the children attend and participate in their scheduled sporting, recreational and extracurricular activities when they are in his care.
In the event that the father is not able to take the children to their scheduled sporting and extracurricular activities, pursuant to Order 9 herein, the father will notify the mother as soon as possible and no later than the Wednesday prior to the weekend that the children will be with the father where upon the following arrangement will occur:
(a)The mother shall retain the children contrary to the prescribed handover referred to in Order 3 (a) herein;
(b)The mother will take the child or children to their scheduled sporting and extra-curricular activities:
(c)The children will be handed over to the father at 5:00 pm Saturday at the (omitted) Children's Contact Service or other time as nominated by the mother after the conclusion of the children’s sporting and extra-curricular activities. IT IS NOTED that these Orders apply to all of the children as do all of the Orders herein.
Special days
In the event that Father’s Day falls on a weekend that the children are not otherwise spending time with the father pursuant to his time in these Orders, or Mother’s Day falls on a weekend that the children are not living with her pursuant to the terms of these Orders, the parties will swap their respective weekends to ensure that the children spend the Father’s Day weekend with the father and the Mother’s Day weekend with the mother.
Subject to Order 13 herein, on each of the children’s birthdays all three (3) children shall spend time with the non-resident parent from 3:00 pm until 5:00 pm when the birthday falls on a school day and from 9:00 am until 2:00 pm when the birthday falls on a non-school day, with the non-resident parent to collect the children from school if it is a school day and return them to the (omitted) Children's Contact Service at 5:00 pm and on those occasions when the Contact Service is not open, the children will be returned to the (omitted) Police Station or at any other location nominated by the mother pursuant to the terms of Order 4 herein.
Order 12 will not apply if the children are otherwise spending block holiday time away from (omitted) with the other parent during school holidays, as provided for in these Orders. In other words, Order 12 is not intended to interfere with either parent’s block holiday time with the children, in the event that the other parent is away from (omitted) or has other plans for their holiday with the children.
General Orders
The Mother and the Father shall each keep the other informed of their current residential address, their current mobile telephone and landline telephone numbers and shall advise the other parent of any changes within forty-eight (48) hours of any change.
The parents shall each establish a linked account on the Our Children Australia website and shall communicate with respect to the arrangements for the children on that site except in emergency situations when they shall communicate via SMS text, mobile telephone or a landline telephone.
Commencement of Father’s time
The father’s time to be spent with the children pursuant to Order 3 herein will commence as and from Friday 13 February 2015. In the meantime, the children will live with the mother.
The Independent Children’s Lawyer is discharged.
PROPERTY
IT IS ORDERED THAT:
That of the funds held in the Trust Account of J. Hamilton & Associates Solicitors in the names of Ms Prescott and Mr Prescott ($16,438.80) be released and applied in payment of the following:-
(a)Any outstanding taxation or ASIC liability of the company (omitted) ((omitted)) Pty Ltd (ABN (omitted));
(b)Payment of any rates outstanding to the (omitted) Council for the land and residence at Property T, more properly described as Lot (omitted) on Registered Plan (omitted), County of (omitted), Parish of (omitted), Title Reference (omitted), including payment of Claim No. (omitted) filed in the Magistrates Court Mackay, as at the date of these Orders;
(c)Any outstanding monies owing to (omitted) Accountants arising as a result of the preparation of company income tax return and business activity statements for (omitted) ((omitted)) Pty Ltd;
(d)(omitted) Real Estate in the sum of $892.45;
(e)Any shortfall to be paid by the Husband within 14 days of the date of these Orders, with confirmation of payment to be made to J. Hamilton & Associates within 7 days of the date of payment;
(f)The balance (if any) to be paid to the Wife.
That within fourteen (14) days of the date of these Orders, the Husband and Wife shall take all necessary steps and sign all documents necessary to wind up the company (omitted) ((omitted)) Pty Ltd, ABN (omitted) with the Husband to be solely responsible for the cost.
The Wife is to retain to the exclusion of the Husband the following:-
(a)Ford Falcon motor vehicle, registration number (omitted);
(b)Camper Trailer.
That within seven (7) days of the date of these Orders, the Husband shall take all necessary steps and sign all documents necessary to effect the transfer of the registration of the Ford Falcon (motor vehicle registration (omitted)) and to effect the transfer of the Personalised Vehicle Registration Plates (omitted) to the Wife.
Superannuation
That the Wife shall retain to the exclusion of the Husband her (omitted) Superannuation entitlement and benefits.
The Husband shall retain to the exclusion of the Wife his (omitted) Superannuation entitlements and benefits.
(omitted) Super – Splitting Order
That the following occur with respect to the Husband's (omitted) Superannuation:-
(a)Pursuant to section 90MT (4) of the Family Law Act 1975 (as amended) one hundred percent (100%) be allocated to the Applicant Wife, Ms Prescott in respect of the Respondent Husband, Mr Prescott’s superannuation interest in the (omitted) Superannuation Fund (“the fund”), Member No. (omitted);
(b)Pursuant to section 90MT (1)(b) of the Family Law Act1975 (as amended) whenever a splittable amount becomes payable in respect of the said interest the Applicant is entitled to be paid with the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 by reference to a figure of one hundred percent (100%) of the Respondent’s interest and there is a corresponding reduction in the entitlement the Respondent would have had but for these Orders.
Order 24 has the effect of the operative date:-
(a)The operative date of these Orders is the fourth (4th) business day after the Order is served on the Trustee of (omitted) Superannuation Fund.
(b)This Order binds the Trustee of (omitted) Superannuation Fund.
The Husband and Wife and the Trustee of (omitted) Superannuation Fund have liberty to apply upon giving each of the other parties at least seven (7) days written notice.
(omitted) Super – Splitting Order
That the following occur with respect to the Husband's (omitted) Superannuation:-
(a)Pursuant to section 90MT (4) of the Family Law Act 1975 (as amended) one hundred percent (100%) be allocated to the Applicant Wife, Ms Prescott in respect of the Respondent Husband, Mr Prescott’s superannuation interest in the (omitted) Superannuation Fund (“the fund”) Member No. (omitted);
(b)Pursuant to section 90MT (1)(b) of the Family Law Act1975 (as amended) whenever a splittable amount becomes payable in respect of the said interest the Applicant is entitled to be paid with the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 by reference to a figure of one hundred percent (100%) of the Respondent’s interest and there is a corresponding reduction in the entitlement the Respondent would have had but for these Orders.
Order 27 has the effect from the operative date:-
(a)The operative date of these Orders is the fourth (4th) business day after the Order is served on the Trustee of (omitted) Superannuation Fund;
(b)This Order binds the Trustee of (omitted) Superannuation Fund;
(c)The Applicant Wife shall within seven (7) days of the date of these Orders, request the Trustee of (omitted) Superannuation Fund to roll over/ transfer the sum calculated by reference to the one hundred percent (100%) of the Respondent’s interest in the (omitted) Superannuation Fund in the name of Mr Prescott to a fund held for the benefit of Ms Prescott;
(d)Pursuant to the Family Law (Superannuation) Regulations 2001 Mr Prescott shall do all such things and sign all necessary documents to give effect to the request and transfer of funds herein as may be required by the Trustee;
(e)The Trustee, (omitted) Superannuation Fund’s fees in respect of both the payments split and the request for transfer herein shall be paid by the Applicant to the Trustee forthwith upon receipt of notification by the Trustee of the amount of such fees.
The Wife and the Husband and the Trustee of the (omitted) Superannuation Fund have liberty to apply in relation to the workings of these Orders upon giving each of the other parties at least seven (7) days written notice.
(omitted) Superannuation – Splitting Order
That the following occur with respect to the Husband's (omitted) Superannuation:-
(a)Pursuant to section 90MT (4) of the Family Law Act 1975 (as amended) one hundred percent (100%) be allocated to the Applicant Wife, Ms Prescott in respect of the Respondent Husband, Mr Prescott’s superannuation interest in (omitted) Super (“the fund”), Member No. (omitted);
(b)Pursuant to section 90MT (1)(b) of the Family Law Act1975 (as amended) whenever a splittable amount becomes payable in respect of the said interest the Applicant is entitled to be paid with the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 by reference to a figure of one hundred percent (100%) of the Respondent’s interest and there is a corresponding reduction in the entitlement the Respondent would have had but for these Orders.
Order 30 has effect from the operative date:-
(a)The operative date of these Orders is the fourth (4th) business day after the Order is served on the Trustee of (omitted) Super ((omitted) Super ).
(b)This Order binds the Trustee of (omitted) Super.
(c)The Applicant Wife shall within seven (7) days of the date of these Orders, request the Trustee of (omitted) Super to roll over/ transfer the sum calculated by reference to the one hundred percent (100%) of the Respondent’s interest in (omitted) Super in the name of Mr Prescott to a fund held for the benefit of Ms Prescott;
(d)Pursuant to the Family Law (Superannuation) Regulations 2001 Mr Prescott shall do all such things and sign all necessary documents to give effect to the request and transfer of funds herein as may be required by the Trustee;
(e)The Trustee, (omitted) Super fees in respect of both the payments split and the request for transfer herein shall be paid by the Applicant to the Trustee forthwith upon receipt of notification by the Trustee of the amount of such fees.
The Wife and the Husband and the Trustee of (omitted) Super have liberty to apply upon giving each of the other parties at least seven (7) days written notice.
Spousal Maintenance
Wife’s Application
That the Husband pay to the Wife by way of spousal maintenance the sum of $200.00 (two hundred dollars) per week for an initial period of 3 years from the date these Orders with that sum to be paid by way of direct deposit into a bank account nominated by the Wife from either a direct deduction from the father’s bank account or salary, such arrangements to be at the sole nomination and discretion of the Wife. The Husband is to inform the Wife of the relevant information required to establish either arrangement and he is to comply with all requests of the Wife or his bank or employer, in order to comply with this Order.
Husband’s Application
The Husband’s application for spousal maintenance is dismissed.
Child Support
The Husband’s application for the Wife to pay the Husband Child Support is dismissed.
Alleged debt to Ms R
The Husband is solely responsible for the payment of all or any debts of any kind whatsoever, allegedly owed to Ms R or her agents, by the Husband or the Wife or relating to any alleged joint debt of the Husband and Wife to Ms R and the Husband shall indemnify and keep indemnified the Wife against any or all such alleged debts of whatsoever kind.
General Orders
Save as is expressly provided for in these Orders, each party shall be solely entitled to the exclusion of the other to all property (including choses in action) in the possession of such party as at the date of these Orders, including but not limited to:-
(a)Money standing to the credit of either party in any separate bank account is to remain their property;
(b)Each party foregoes any claims they may have to any superannuation benefit belonging to or earned by the other;
(c)Each party hereby foregoes any claim they may have to any long service leave, annual leave, or sick leave belonging to or earned by the other or to which the other may become entitled;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)Each party shall be solely liable for and shall indemnify the other in relation to any personal debt howsoever arising; and
(f)Neither party may hereafter pledge the credit of the other;
(g)This Order shall be binding on the parties heirs, executors and assigns respectively.
That for the purposes of giving effect to these Orders herein both parties shall be at liberty to provide a copy of these Orders to their Financier and other Government Departments.
That if either party refuses or neglects to sign (within ten (10) days of a request to do so) any documents that give effect to these Orders, then pursuant to the provisions of the Family Law Act 1975 (as amended):-
(a)The Registrar of the Federal Circuit Court of Australia at Townsville is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute all such deed instrument or documents in the name of the defaulting party and to do all acts and things necessary to give validity and operation to these Orders; and
(b)The Affidavit of the party or the Solicitor representing that party seeking to give effect to these Orders shall be sufficient proof of the default of the other party necessary to give effect to this Order.
Costs
In the event that there is any application for costs, the Applicant is to file and serve written submissions, a draft Order and a schedule of costs pursuant to the rules and regulations of the Court validating the amount claimed, within 28 days of the date of this Order. The Respondent is to file and serve written submissions within 28 days of being served. A date will then be allocated for the oral hearing of the costs application.
IT IS NOTED that publication of this judgment under the pseudonym Prescott & Prescott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MACKAY |
TVC 414 of 2012
| MS PRESCOTT |
Applicant
And
| MR PRESCOTT |
Respondent
REASONS FOR JUDGMENT
Introduction
This application involves both property and children’s matters.
The applicant is Ms Prescott (the mother) and the respondent is Mr Prescott (the father). The applicant was born on (omitted) 1980 and is currently 34 years old and the respondent was born on (omitted) 1977 and is currently 37 years old. The mother and the father commenced cohabitation around mid-1997 and were married on (omitted) 2002 in (omitted). The parties separated finally on 20 August 2011. There are three children of the marriage. They are X born (omitted) 2005 currently aged nine, Y born (omitted) 2007 aged 7 and the youngest child Z born (omitted) 2009 aged 4 (“the children”).
Prior to separation the parties all lived together at the former matrimonial home at Property T. At separation the parties attempted to live in a co-operative arrangement where it was agreed that the mother would live in the house with the children during the week and leave each alternate weekend and at that time the children would remain in the father’s care and then the mother would return to live at the former matrimonial home. The mother’s evidence is that she enjoys a very close relationship with her own parents and on the weekends that she had the children they would go to her parents’ home from Friday afternoon to Sunday evening.
This arrangement of the father moving back into the home on the alternate weekend became difficult as according to the mother he would drop by the home whenever he felt like it without prior notice. This led to constant arguing and conflict. Issues of financial matters and property settlement which were being raised by the father regularly which also lead to arguments. The father’s intention at that time was to retain the former matrimonial home as part of the property division and the father constantly asked the mother when she was leaving the house and where she was moving to. Ultimately, the mother moved out of the home on 22 September 2011, though she could not afford paid accommodation for herself and the children elsewhere. She moved in with her parents.
After the mother moved out of home the father contacted her to say that he changed his mind and he did not wish to keep the home and that he was not going to move back in. He also said he no longer intended to contribute to the mortgage repayments and he locked the home so that the mother could not re-enter. The mother says that the father threatened to get an excavator to dig up the backyard that the father had said to her, “I will go bankrupt and you will get nothing.” During this trial the father has given evidence that at least 12 months ago; he had an application to go bankrupt. He also stated that if this property settlement is fair (according to his standards) he will pay his share of the debts but if it is unfair, he will become bankrupt.
The mother was so overwhelmed and intimidated by the father’s hostile attitude, harassment and constant text messages (hundreds of text messages) that she felt safest remaining living at her parent’s home together with the children. This was the only way the mother felt secure in her own environment and be sure that the father would not attend in her home uninvited whenever he felt like it.
It is agreed that the father was the primary income earner in the marriage and it was this income which generated an income for the household. The income earned by the father was technically split between the parties in an income splitting arrangement. Subsequently orders were made by consent on 12 June 2012 that the father was to pay the mortgage repayments as and when they fell due. By that time I understand the arrears were around $20,000.00 and these arrears had accrued at a time when the father was continuing to work. By consent the father was permitted to have sole occupation on the condition that he continued to pay the mortgage repayments. On that date the Court issued standard procedural orders for the parties to value assets where the value of those assets were in dispute and the parties were ordered to attend a financial conference as well as a child dispute conference.
An interim hearing occurred on 11 July 2012 in relation to children’s matters and other issues that had arisen in relation to the property orders for the valuation of assets in dispute. The father engaged in time wasting conduct which was intended to increase the mother’s legal fees. Pursuant to the previous standard order regarding valuations, the father informed the mother’s solicitor that he wished various items to be valued as per the orders and he included items such as 40 pegs, a sink drainer, a wedding dress, schoolbags, one cloth mop, six pillows, an ironing board, 90% of the children’s stories, single mattresses, a dinner set and a water blaster. On 11 July 2012 the Court subsequently set aside the previous orders regarding valuations and listed specifically items that needed to be valued being; a camper trailer and box trailer.
Property matters returned to Court on 26 November 2013 and given the failure of the father to co-operate with sensible requests to expedite the sale, the mother was appointed trustee for sale of the property by consent and other procedural orders were made in relation to the property being sold and the mortgages being paid out.
The father told the Court he had taken steps to reduce his child-support to nil and that it was “time out for him now” and that it was now “time for me and I have not had a holiday for a long time.”
Since that interim hearing, the father’s continued non-payment of the mortgage resulted in a forced sale by the mortgagee bank. In March 2014 the parties received correspondence from the (omitted) bank that they were going to exercise the power of sale contained in the mortgage. The mother had attempted to sell the property prior to this occurring however she was not successful in doing so. The father wanted nothing to do with the sale.
Essentially there is no non-superannuation assets left and the forced sale of the single biggest asset resulted in their being a shortfall between the sale proceeds on the amount required to pay the mortgage out, over $100,000.00. There are various small superannuation funds of both the mother and father which remain for division. Apart from that there is only debt remaining. These issues will be explained more fully in the “property” section of this judgment.
An overwhelming feature of this matter is that the father has become quite contrary, arrogant, and obstructionist at every point whether it is in relation to the children or to the property issues which will be referred to throughout these reasons. The father has also shown contempt towards the mother, the legal process and this Court as will be seen in the reasons which follow.
The children have remained living with the mother and she has been the primary carer of children post separation. At the time of trial the children are living with the mother and spending each alternate weekend with the father from Friday afternoon until Sunday afternoon and Tuesday afternoon in the alternate week. Given that the conflict and harassment post separation the mother nominated that changeovers occur the (omitted) children’s contact Centre. This post separation conflict led to the mother applying for protection via a domestic violence order. A domestic violence hearing occurred in the Magistrates Court in Mackay and the reasons given at this contested hearing form part of the evidence before this Court.[1] The Court was satisfied that acts of domestic violence had occurred but was not satisfied of the likelihood that they would reoccur.
[1] Exhibit ICL 8.
The father who it seems has worked almost continuously post separation with a variety of firms, was working at the time of the trial with an organisation called (omitted).
CHILDREN’S MATTERS
At the time of trial the mother remains living with her own parents who have renovated the home and included a downstairs area for the mother and children.
Each of the mother and father gave evidence in this matter along with the father’s partner Ms R, the father’s own father Mr S and the mother’s own mother Ms S.
The Report Writer Mr C was also cross-examined having prepared two reports.
The Law
The children’s application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). This application was filed on 16 April 2012 and therefore is prior to the amendments effective 7 June 2012.
In making parenting orders the best interests of the child are paramount considerations. The Act provides two primary considerations the first is the importance to children of having a meaningful relationship with each of the parents and the second is the need to protect children from physical and psychological harm from being subjected to or exposed to abuse and neglect or family violence. The additional considerations are referred to in section 60CC (3). Section 61 DA requires that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility however that presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If an order is made for equal shared parental responsibility the Court must consider the child spending equal time or substantial and significant time with each parent in certain circumstances pursuant to section 65DAA (1).
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in both in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
As to the property application, I have referred to the relevant law at the property section of this decision.
Witnesses
The mother
The mother gave her evidence in a considered and thoughtful manner. She was not attempting to exaggerate or over dramatise any of the various incidents which have occurred in this matter which caused much distress. The mother was stoic in her re-telling of the father’s conduct and the financial struggle she and the children have had and was willing to make concessions against her own interest. The mother admitted quite candidly that when she insisted that the father should be the one to collect the children on a Tuesday afternoon, that she did this truly believing that when the orders said the father would collect them that it meant only the father was to collect them. Her explanation that it was the father who asked for this afternoon time and that it was for a few hours and she considered therefore that it would be the father that collects them was reasonable in the circumstances. She however quickly acknowledged that there was no difficulty in either the paternal grandmother or grandfather collecting the children and said she does not have any issues about the children spending time with the paternal grandparents. Whilst the father and his partner portray the mother as being the instigator of some sort of ruthless vindictive strategy against the father, I formed the view that these and similar allegations were entirely baseless. In fact, I consider that the father was accusing the mother of precisely the conduct that he was engaging in against the mother.
The mother has been subjected to shouting and yelling, explicit insults, arguments and abuse including financial abuse through the father’s deliberate conduct. Through all of this she has tried to keep a relationship going between the children and the father. She and her mother have brushed off vulgar insults directed to her by the father, such as referring to her as a “fucking slut”[2] whilst the children were present, something he has admitted to under cross-examination which his current partner does not accept he would ever say. The mother gave evidence of other explicit language embodied in insults which are being carried by the children from the father’s house to the mother and repeated to her on arrival, having spent time with the father. The maternal grandmother gave similar evidence of children arriving back from time with the father then saying things like “mummy and Granny are fucking useless” or “dumb cunts” and other similar insults. The mother and grandmother just explain to the children that the father says rude things when he gets angry.
[2] Affidavit of Ms S filed 2 April 2014, paragraph 13.
The mother explained that the father uses a certain tone with her and she has given evidence that a similar tone has been used in his dialogue with X who subsequently was so upset, that he refused to see his father for a period of ten weeks. The father is proud of his arrogance and agrees that he uses explicit and foul language and says that it occurs all the time in his workplace.
The mother presented as extremely child focused and a parent who has been trying to protect the children from the barrage of insults and conflict which has been caused post separation by the father. The mother has persevered in using the communication book as it was intended and describing various childhood illnesses or incidents to the father to assist him in his parenting, despite receiving nothing useful in return for a very minimalist answer failing to acknowledge her concerns. She did this despite the father returning the communication book with scribbling all through it. The father explained to the Court that he lets the children scribble in the book and it was clear that he regarded the use of the communication book as just another avenue to attempt to irritate the mother or be obstructionist.
I consider that the mother’s parenting has been made significantly more difficult by the lack of co-operation from the father accompanied with a concerted effort on his part to complicate or be obstructionist in relation to obvious changes which needed to be made from time to time, such as the father insisting that the contact centre still be used as a changeover location despite the fact that the centre was no longer open on the particular day. The father’s evidence that he refused to change the location simply because the contact centre was closed and instead preferring to have the contacts happening at a closed contact centre was one of the high watermarks of the father’s absurd evidence which illustrated his inability to think clearly and co-operate with any sensible parenting arrangement. The father just regarded it as an opportunity to create further difficulties.
As I have said despite all of these difficulties and more which will be referred to in these reasons, the mother has continued to facilitate the children having a close and loving relationship with the father. It is to her credit that these children have the relationship that they currently enjoy with the father, though it certainly has not been without its difficulties and it seems that X has reached a stage where the father is becoming somewhat threatening towards X using a particular tone of voice which is what he used to do with the mother.
I found the mother to be honest witness and an accurate historian and an extremely child focused mother who knew the strengths and weaknesses and frailties of her children and who has committed herself 100% to single parenting and raising of these children post separation. Where her evidence contradicts that of the father, in the absence of any independent evidence I prefer the evidence of mother.
Ms S, maternal grandmother
This witness was an impressive witness. She gave her evidence openly and thoughtfully. She has provided significant assistance and emotional support to the mother and through her to the children, both throughout the marriage and particularly since separation.
I accept her evidence in all respects.
The father
I am satisfied that the father has engaged in this legal process in both documents and his personal engagement with the Court at Court events in a manner which has shown complete contempt for the Court for the mother and for the legal process. I would go so far as to say that the father who wears his self-proclaimed title of being arrogant saying, “I am very arrogant, being arrogant has got me where I am today” as a badge of honour, has enjoyed complicating and frustrating the process and has been prepared to do or say anything that occurred to him at any given moment which would further obstruct the litigation process and show his contempt of the Court and its processes.
An example of this behaviour is seen in its dealings with the family Report Writer. Initially the father informed the Report Writer that he did not think the interviews would be appropriate as he had not heard anything from the Independent Children’s Lawyer (ICL) and continued to hold that attitude despite explanations from the family Report Writer. The father then announced that he would be recording the interview and on arrival placed his mobile phone on the table to record. The Report Writer indicated he did not give his permission for the interview to be recorded.
The Report Writer initially had difficulties even scheduling a conference as the father indicated in late December 2012 that he would not be available until February 2013 and the interviews needed to occur between the hours of 4:00 pm and 8:00 pm. The father explained to the Court that he would not allow the family Report Writer to spend time alone with the three children in preparing the addendum to the report, and that he insisted that he himself or his partner or his father be present at all times. The Report Writer indicated that he would not be interviewing the children under those conditions.
Under cross-examination the father was asked why it was that he wished to impose this condition. The father said it was because at the first family report interview, his daughter had complained about Mr C. He said she told him that Mr C interviewed her and he called her a “nasty girl and Mr C was nasty to me when I was alone with him and told me I was a rude little girl and that I was a rude little girl who needs to wake up to herself.” This issue had never before been raised by the father with the ICL or the Court or put in any affidavit. The father had no valid explanation for not raising this with the ICL or Mr C at the time he allegedly heard about it.
I am satisfied that the father was making up the story on the spot in the witness box, as he was doing in relation to other issues. I considered he was making a mockery out of the Court process. His partner also made baseless and unjustified criticisms of the Report Writer saying that, “he is not a real safe person to be” and “he turned up unannounced he has no qualifications and I know he is a bus driver.” It became very clear to the Court that the father and his partner had set out to frustrate and obstruct the legal process and each show contempt for the Court and the mother.
The father gave evidence that was at times bordering on delusional such as his explanation that on the night he could have taken X to a school concert but effectively refused to do so. He insisted that the mother bring X to the usual handover place half an hour before the concert was to start and would not give the mother any assurance that he would take X to the concert, being held at the (omitted) Convention Centre. X had been practising for weeks for the concert. The father’s reason for not agreeing to take X was that the mother did not give him what he regarded as sufficient notice. He told the Court that he couldn’t take X in any event because he had plans of his own. Those plans were that he was going to drive to (omitted) that Friday evening with the children, a journey of four hours, and they were going to stay at the casino for Friday and Saturday nights and come home on Sunday.
The father refused to entertain any suggestions when asked to do so under cross-examination that he could have taken X to the concert and left after the concert or driven to (omitted) the following morning. When asked what he actually did do and on that evening the father said he drove himself to (omitted) (approximately a 4 hour drive each way) for no particular reason. When he arrived there he realised he didn’t want to be there and turned around and drove back to (omitted) arriving at about 3:00 am. The father continued the story that having driven back from (omitted) at around 3:00 am, he got up and went to the mothers to deliver the registration sticker at 7:00 am. When it was suggested to the father it seems improbable that he would choose to drive himself to (omitted), use the fuel to do so and then drive back again for no reason, the father says he did it for stress relief. He relied on using the term stress relief for various explanations to what were highly improbable scenarios.
The father justified sending a multitude of emails to the mother’s solicitor, many of which he was contemptuous and arrogant and personally derogatory to the solicitor, on the basis that it gave him stress relief to do so.
On the topic of communication when the father was asked under cross-examination about the communication book and shown the scribbling in the book, the father laughed and said that he allows the children to scribble in it. When challenged as to how it was that that was funny, the father laughingly replied that children will “draw on your walls and all over.” When challenged as to whether or not he was allowing the children to draw on walls, the father said he did not allow it and doesn’t let them do so and he thought it was funny that they draw in the book. When asked why he didn’t stop them he said, “I can’t stop them.”
The father has made a significant issue about not being available to receive communication from the mother in relation to issues to do with the children. The father however puts up continual barriers. He says he does not have a mobile phone for private use and instead says he has a work phone which is only allowed to have permitted personal calls and text messages. He has said the same for email exchange saying that is not allowed to use this work email address for private purposes. He says this when it suits him however. When it suits him he uses the work email address to send offensive emails with the letterhead “(omitted).”
The father gave evidence he earned around $75,000.00 a year however his payslips were called for during the trial and they confirmed that $75,000 was an understatement. The income on a year-to-date basis is around $92,000.00. The father says that this is due to working overtime.
The father gave sworn evidence in his financial statement that his defacto partner had no income, however this was false. The father said he omitted to include social security and family allowance income as he understood the question to refer to income and not any social security income and therefore he inserted nil. The father also gave evidence that his de facto is a beneficiary in a family trust and that through this trust his defacto’s parents pay her mortgage of $400.00 a week for her.
The father then said under oath that he paid $400.00 a week rent to his defacto. This was false evidence. When pressed as to the details of this payment, the father subsequently admitted that the $400.00 is paid towards his defacto’s mortgage. Ultimately the father said under oath he had agreed to be a co-mortgagor on the mortgage relating to Ms R’s home, but says his name is not on the title of Ms R’s house. The father though denies he has any interest in the home and says he is just paying rent. His evidence is inherently implausible. He has not included his interest in Ms R’s home in any Court document or that he is paying the weekly mortgage repayment. It was only revealed through cross examination.
I have no doubt that his current position of having no interest in Ms R’s home will change in the future, if it suits the father’s purpose to do so.
In terms of the parenting orders being sought by the father, that the children change residence and live with himself and his partner and spend only from the conclusion of school Monday until the commencement of school Wednesday morning with their mother, the father was given every opportunity to explain to the Court why this radical departure from the current arrangement was necessary. He failed to provide any cogent reason.
Ms R
This evidence of this witness was quite a staged performance. The witness entered the Courtroom and purposely very slowly rambled up to the witness box. As soon as the questioning commenced, she seemed very reluctant to answer questions in both her mannerism and replies. She remained silent at times, looking blankly around the Courtroom. It quickly became apparent that she did not wish to be responsive in her answers, as seen in the transcript. After some short time, Counsel for the mother, Mr Fellows, observed that the witness was showing signs of being reluctant to answer questions, all of which were focused on the source of her income. I agree with the observation of Counsel.
Ms R stated in response to questioning from Counsel that the father does not give her money for rent. The witness then changed her position to say that he did pay her rent, and then changed her position again, to say that he did not pay her rent, instead he paid it to her mother.
When asked a series of questions about why the father would pay $400.00 per week rent to her mother, the witness replied why not. When asked if that was the best answer she could give, she replied yes.
Ms R was reminded by the Court that she was under oath and of the offence of perjury. Shortly after that, she was asked about the preparation of her own affidavit and whether she had consulted with the father in drafting it, at which point Ms R remained silent again. Ms R then announced that she was about to pass out and may need to lie down, as she leaned out of the witness box. A short break was taken.
The witness was then asked questions about her dealings with Centrelink and benefits received and the amount of funds which she said she literally kept under the bed, of $20,000.00. Noting the position of self-incriminating evidence that appeared to be evolving, a section 128 certificate was issued, in relation to the evidence she gave about her Centrelink payments. Ms R became more co-operative and admitted that she had set up some elaborate arrangement of the father paying “rent” to her mother and her mother paying the mortgage, so as to deceive Centrelink and similarly, that she keeps money under her bed, as to place it in a bank would bring it to the attention of Centrelink.
Ms R and the father gave inconsistent evidence about her financial affairs and income. Similarly, the father and Ms R gave inconsistent evidence about Ms R allegedly helping to pay out a credit card debt of the parties. The evidence on this topic was all unsatisfactory.
Ms R and the father entered into a defacto relationship after they had known each other for about four weeks. Their defacto relationship commenced on (omitted) 2012. Ms R stated that she is the defacto partner of the father and also says that they have entered into a prenuptial agreement in relation to the house that she purchased in her name but with herself and the father as co-mortgagors.
Ms R has children from a previous relationship and she herself was involved in family law litigation back in April 2008. Ms R and her former partner were involved in contravention proceedings in September 2012. One of the children from Ms R’s long-term relationship, A born on (omitted) 2001, commenced living with the father and Ms R in and around December 2013 and orders were made for the suspension of her time with her eldest son, B.
In between her break up with her long term partner with whom she had the children, Ms R entered into a short lived marriage which lasted some four weeks.
She had much acrimony towards the family law system and very strong negative views about the mother that mirrored those of the father. Her evidence was at times very troubling. She holds very strongly critical views about the mother. Ms R supported the father’s application that the children now live full time with the father, and see their mother on only alternate Mondays and Tuesdays and no weekends and asserted that there was a fair basis for this. Her explanations as to why it was fair, as seen in the transcript, showed signs of disordered thinking and rambling rhetoric. When asked several times how it was “a fair basis” to change the children’s living arrangements so radically, and cut the time with their primary carer down to two days a fortnight, but not even weekend days, Ms R’s response was that she had her own bad experience with orders not being followed and not seeing her children for long periods of time. This was her justification for supporting such orders.
Ms R admitted that in August 2013, she went to see the maternal grandmother with a letter she had written addressed to Ms Prescott the mother but that she had not consulted the father about the letter or the visit. She said she had done this given the difficulties with the domestic violence orders and communication between the parties. During her impromptu visit to the work place of Ms S, Ms R became upset and tearful. I had the impression that Ms R was making an attempt in her own way, to make a connection with the maternal grandmother and to convey her concerns at how the litigation was been played out and its affect upon the children. Her actions in this regard were also motivated, as she said, by her own Court experience and her disappointments therein. During the visit, Ms R made candid admissions about the father, saying that he was “very opinionated and dominating, and that is a big factor in all of this.”[3] When questioned about these comments under cross examination by Ms Mayes of Counsel for the ICL, Ms R refused to admit that she had concerns about the father. I was left with an uneasy impression that Ms R may herself be in a relationship with the father in which he is exerting a degree of control over her.
[3] Affidavit of Ms S filed 2 April 2014, paragraph 14.
Ms R’s presentation and fixed views were quite troubling. It seemed that she harboured much resentment about her own Family Law experience and that she had found a new cause to become involved in, in assisting the father with his actions in this matter. Together they appear to be encouraging each other. Ms R had significant grievances and overall I was very troubled by the prospect of the children in this matter spending significant time under her influence given the strong views held by her about the mother.
I do not accept that Ms R would be able to contain her strongly held criticisms of the mother from the children nor do I accept that she would be able to shield the children from the foul and ongoing criticisms made by the father in the presence of the children.
Ms R considers that the mother has engaged in “absolutely ruthless tactics” in this litigation. She does not accept that the father would be insulting towards the mother or call her a “slut” and says “he compassionately cares for Ms Prescott.” The Court accepts the evidence of the mother and Ms S that the father has said to the mother, in the presence of the children, You’re nothing but a fucking slut and that he uses other explicit foul language routinely in their presence. There is no evidence to support the assertion that the father cares for the mother. Quite the reverse is the position.
I am also concerned about her stability and judgment. Her comments about the very experienced family Report writer Mr C, as seen in the transcript, were scandalous and without foundation. I had the impression that Ms R deliberately set out to besmirch the character of the Report Writer in saying children were unsafe in his presence.
Mr S, the paternal grandfather
Mr S gave evidence and was cross examined. He has been very helpful in regularly picking up the children for the father. He says he loves his grandchildren and they are a delight to have around. I accept this.
He is understandably strongly aligned with the father. His attempts to explain his conduct in the presence of Mr C the Report Writer were unconvincing. His suggestion that the children needed to have himself or other adult present as Mr C was a stranger was naïve and implausible. It was clear to the Court that the father had seen the interviews of the children for the purposes of a Family Report, as another Court event that could be sabotaged. Mr Prescott senior went along with the father’s plans in this regard though I am not sure that he had ever had properly explained to him, the nature and purpose of the assessment by the father.
Mr C, Family Report Writer
The Report Writer referred to the father as a litigant who has shown complete contempt for the legal process and the Court and stated that this degree of hostility and content is rarely seen. Having watched the father over two days in the witness box and in Court whilst representing himself, I agree entirely with the assessment of Mr C.
In terms of his attendance upon the father’s home for interviews, where ever the testimony of the father or Ms R or the paternal grandfather are in contest with the evidence of Mr C, I prefer the evidence of Mr C.
I had a strong impression that the father and Ms R sought to undermine the Court process of having a report done and that the criticisms made by each of these witnesses regarding Mr C and his report, was contrived and strategic.
The Report Writer was cross-examined about the issues raised by the father and what he allegedly said to Y. Mr C denied making any such comments and said that he could never imagine any circumstances when he would say such things to any child. I accept his evidence without reservation. In addition, contrary to the assertions of Ms R, Mr C’s professional qualifications are accepted by the Court.
I have had regard to the Family Report and evidence given by Mr C who is a very experienced Report Writer. I found his reports very helpful and generally I accept that his recommendations are in the best interests of these children.
Mr C does not support the application of the father to remove the children from their long standing post separation arrangement and considers it would not be in the children’s interests. Mr C said at the first interview, the father brought up the idea in the interview process, basically because Z was spending some time in day care. He described the father as making a flippant remark saying he may as well have them in his full time care. Mr C considered in the circumstances of this case, it would be an extremely traumatic event for these children to be removed from the primary care of their mother and that there had been no event that would suggest such radical change is warranted. He considered the position of the father was too extreme and demonstrates a lack of insight into a child’s relationship with their parent.
In terms of the father’s comment at paragraph 21 of the second Family Report, Mr C confirmed that the father said in regards to X’s soccer on a Saturday morning, that he would take X when I have time, and that the father said that the children had to see grandparents, and they were busy and he saw no reason to take them to the soccer games. Mr C found the father’s explanation about X and Y’s soccer hard to understand given the comments by X that they don’t do anything on Saturday mornings. The father’s attitude did not take account of X’s needs and in particular his belief, that he is letting the team down.
Mr C explained that in regard to communication between the parties, he tried to explain to the father that this was an issue at the core of the difficulties, and that the father said I don’t care about communication. In Mr C’s view the issues regarding communication between the parents continue to be significant and are adversely affecting the emotional welfare of the children. He noted that the father’s complaints about lack of being kept aware of issues by the mother, were not born out by the content of the communication book. I accept this.
Mr C’s conclusion after his assessment and observations of the parties and the material was that in regards to communication, it is difficult to come to any conclusion other than Mr Prescott continues to block and to make as difficult as possible the discussion of even the simplest of issues and is more intent on pressuring Ms Prescott to use a solicitor, both in communication and to “change the orders” for something as simple as the change in the timing for phone calls of 15 minutes. Given the evidence that appears in the correspondence between the father and the mother’s lawyer as seen in the mother’s material, I accept that Mr C is correct in this conclusion.
Mr C considered that when preparing the second family report there had been little or no change with regard to the issues identified in the previous report, that the father continues not to discuss even the simplest issues and in doing so, the father continues to ignore his responsibility regarding the welfare of the children.
Overall all, Mr C considered that the father’s behaviour did not support an equal shared care arrangement, nor did it support an order for equal shared parental responsibility. Mr C believed that to have an order for equal shared parental responsibility, the parents needed to have at its foundation the ability to co parent, compromise and negotiate. Unfortunately, the father showed none of these attributes and the children would be at risk of being subjected to ongoing conflict if such an order were made.
The recommendation in Mr C’s second report, as it was in the first report, is that the children live with the mother and spend from Friday afternoon until Sunday afternoon each alternate week with the father, and that the current arrangement for the alternate Tuesday afternoon continue. Mr C recommended that the Saturday time with the father include a proviso that the father is to take the children to their soccer matches on the Saturday they are in his care.
S.60CC(3) The additional considerations are:
S.60CC(3)(a) 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
At the time of the first report, due to the ages of the Y and Z, the current living arrangements were not discussed with them, though they were observed in both homes. Mr C noted that the children seemed articulate, relaxed and in good spirits and eager to show the writer things in both their homes.
X’s memories of his parents was that they were always fighting. He said at that time, the fighting had eased but that he got upset when his mother gets upset. X appeared to genuinely enjoy the time on Tuesday afternoons with his grandfather and father, and he liked Ms R. At the second interview, X said he wanted to live half the time with his mother and half the week with the father, but could not explain why. There had been an earlier discussion between X and his mother, after X came back from his father’s home, in which X said he was going to tell the “man coming to ask where I want to live” that he wanted a week with dad and a week with mum. X however, did not raise this with Mr C.
In the second interview, both Y and X expressed their disappointment at their father not taking them to their Soccer. X indicated he went to training every Thursday and plays matches on a Saturday but not when he is with the father. He explained that his father told him he didn’t have time, but said that they rarely do anything on Saturday mornings. He explained that this made him feel like I’m letting my team down” and that when he was little “dad was keen on me playing” but “not anymore.”
X also indicated when asked, that they were not allowed to take their teddies to their father’s house. He said it wasn’t a problem for him, but it was for Z and Y. X could not understand why his father would not allow this.
Like many children, X indicated that it might be fair if the children spend half the time with each parent and that this would “stop them fighting.” He explained that the father often speaks directly to him when he picks him up, about “mum allowing me more time.”
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The children have a strong, healthy and loving relationship with the mother.
In the first report they were seen to be relaxed and enjoying themselves at each home.
As can be seen in the second report, the ongoing conflict, which in the view of the Report Writer is primarily due to the father’s refusal to properly communicate and engage with the mother, is now having more impact on the children. They are becoming of an age where they are very aware of the conflict and trying to think up solutions to end it (such as sharing their time equally between the parents). X is old enough to know that there is no valid reason for the father’s conduct in not taking to boys to soccer and not allowing all the children, particularly the two youngest children, to take their teddies to the father’s.
Mr C believes that some of the father’s poor parenting decisions involving medical matters, his refusal to acknowledge the children’s love of soccer and their desire to be part of a team and turn up each week, is more about the father wishing to exercise his rights, which the father places above the best interests of the children. I accept this.
The father loves his children, however, I am satisfied that the father is unfortunately using his parental relationship with the children, to exert his authority and rights and that this is having a detrimental effect on the children. In doing so, he is depriving these young children of their opportunity to develop and grow through the challenges of a team sport.
The father’s strong belief about his “rights” has permeated though to his decisions about medical issues as seen when X, according to a specialist, needed surgery on his tonsils as he was having trouble sleeping, breathing, and he was snoring. A cancellation occurred with the specialist who said he could fit X in immediately. The mother sent four text messages to explain to the father that the surgeon indicated X needed surgery as soon as possible. She received no reply to the initial text. When questioned about this, the father indicated to Mr C that the message was sent to a phone “I don’t use.” The mother said that she had sent the text message to a phone the father had used the day before and which the father continued to use. When asked about this by Mr C, the father said, “I don’t need a phone attached to my arse hole like everyone else.”
This is fairly typical of the father’s harsh language, attitude and views expressed during his evidence. The father thinks that this type of talk is impressive.
Days passed whilst the mother sent three more messages. She finally got a reply from the father saying he would only communicate via the mother’s solicitor. More messages were exchanged where in the father explained again he would only talk to the mother’s solicitor and in which he wanted to see all the doctor’s records, wanted to speak to the specialist and also the father kept asking the mother to “stop harassing me.” The mother wrote a lengthy entry in the communications book about the operation. In reply, the father wrote two lines indicating where he was going to take the children for the weekend.
Other similar difficulties involving the father wishing to control the situation arose when the father complained that he was not told about a concert which was on just after X was to go into his care. The father refused to take X to the concert, saying he had other plans. I am satisfied that he had been told about the concert weeks earlier. It did not bother the father that the mother told him X had been practising for months for his part in the concert. The father was intent on exercising control over the decision, regardless of the best interests of X.
There are many of these examples of difficulties arising whilst the children are in the father’s care and his refusal to be child focused and ensure that his children’s social and sporting obligations are fulfilled. To this extent, that father is not able to put his own interests and strong belief about his rights to one side, to enable him to become genuinely and meaningful involved in his children’s wellbeing.
He does not acknowledge or have insight into the children’s emotional needs. I am most troubled about this aspect of the father’s relationship with the children and his unfailing desire to have his “rights” recognised by which he means, he is to decide most matters and the children will do what he decides, regardless of their disappointments or wishes or distress.
S.60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother has been willing to encourage and facilitate a relationship between the children and the father in circumstances of great distress and whilst concerning incidents have continued to occur. I am satisfied that the mother values the role of the father in the lives of the children but that she has been subjected to hostile and demeaning behaviour directed to her by the father.
The father has shown in his actions post separation in his financial abuse of the mother and his efforts to have the mother and children become homeless, and leave them with no financial backing at all, that he holds the mother in contempt. His application to have the mother pay him $450.00 per week child support in addition to $250.00 per week spousal maintenance given her earning capacity of $150.00 per week and his lack of paying child support, and a negative property pool, show his meanness towards his family. He has deliberately set out to have the mother incur unnecessary legal costs in his vexatious applications.
There is no evidence to suggest that the father would ever support a relationship between the children and the mother. He has, it seems to me, used any opportunity available to him to cause distress, chaos, confusion and hardship for the mother. He has shown that he is very angry with the mother and that he considers she does not keep him informed of decisions and that she makes all the decisions. This belief of the father is not borne out by the evidence. The mother has tried tirelessly to communicate with the father, and to take account of his various directions about when to phone and not phone, what phone to use and not to use, and whatever the mother does, the father treats her attempts with disdain. His response’s to issues raised by the mother in the communication book is another example of this, epitomised by his decision to allow the children to scribble all over the entries.
Unfortunately, his partner Ms R is a willing apprentice to the father to assist him in his plans and conduct. I am equally very troubled about the prospect of the children spending any substantial time under the influence of either or both the father and Ms R.
Overall, I am not satisfied that the father would ever encourage a relationship between the children and their mother. He has made the most vile of insults about the mother, directly to her in the presence and hearing of the children. In the event the children lived with the father, I am confident that they would be under the very strong influence of the father and that this would directly contribute to their relationship with the mother being undermined. This would be entirely against the long term best interests of the children.
I regard this as a significant factor in the determination of what Orders are in the best interests of the children.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The father’s proposal represents a radical departure from their current living arrangement. The children have never lived away from their mother. Even post separation, the time with the father has been Friday to Sunday each alternate week, and an afternoon in the alternate week. Often the children spend that afternoon with their grandparents.
I am satisfied that, as stated by Mr C, the father’s proposal would be traumatic for the children and against their best interests. There is no evidence that would support such a dramatic change in the children’s living arrangements. Also, given my comments about the father wishing to exercise his “rights” more so than accommodating the children’s needs, I am satisfied that an Order for the children to live with the father would ultimately mean that their emotional and intellectual and social needs would not be met.
The father’s proposal for the children to spend Monday after school to the commencement of school Wednesday morning, each alternate week is in itself evidence of the low value he attributes to the love and affection that the children have for their mother and their strong connection to her.
The other proposals of the father, which include the mother needing his approval as to what days at Easter and Christmas the children will spend with her, and for the limited times on those occasions, is more evidence of what little regard the father has for the role of the mother in the lives of these children. These orders would in my view, lead to the cessation of their current strong and loving relationship with the mother.
The mother’s orders will still enable the children to spend time with the father and to enjoy their time with him and their much loved paternal grandfather. The proposal of the mother will result in the children continuing to live with their primary carer and continuing to live in an arrangement which has stability, and which provides for the emotional wellbeing as well as their intellectual wellbeing.
S.60CC(3)(e) 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
I note that the father has refused to agree to the children changing schools, even though they spend many more days in a week travelling the longer distance, and even though he chooses not to pay child support to help with the cost. The choice of schooling issue will be solved with the allocation of parental responsibility. However, there have been other difficulties in affecting handovers namely the father has insisted that handovers occur at the (omitted) Children's Contact Centre as per previous orders, even when the contact centre is closed. It is difficult to fathom that any father seriously concerned with the welfare of his children would seek to construe parenting orders in this fashion. However, unfortunately this has been indicative of the father’s attitude towards his parenting obligations and the mother.
I have already referred to the difficulties in communication as described in the mother’s affidavit and in Mr C’s reports. Although that is a key issue in this matter, there is no hope of this being resolved as the father holds very firmly to his current beliefs and has stated expressly that he does not care about the communication. Therefore it is the view of the Court that changeovers ought to occur in a manner to reduce the children’s exposure to further argument and conflict.
The mother and the ICL seek orders that in the event the (omitted) Children's Contact Centre is not open, that handovers occur at the Police Station in (omitted). In the circumstances of this case, I am satisfied that this order is appropriate. However, given the father’s inflexibility and his desire to create difficulties, I intend to make orders providing for the handovers to occur at the locations nominated by the mother or other locations nominated by her from time to time.
S.60CC(3)(f) The capacity of each of the child’s parents; and 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; The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I rely upon but do not repeat what I have said elsewhere in these reasons as to the father’s parenting and the issues which have arisen when his desire to have his rights recognized collide with the best interests of the children.
The father has had very little experience in parenting in the overall scheme of events in this matter. The mother was the primary carer during their marriage. After separation, over the past three years, the father has been content to leave the bulk of the parenting to the mother. The children have lived with the mother by consent. The father does not have any valid complaints about the mother’s parenting.
The mother has attended to the children’s needs, both emotional and intellectual in every respect. She has attended solely to their medical needs and her efforts to co-parent with the father have met a brick wall. Despite the conduct of the father, the children have maintained a good relationship with the father and I consider that the mother has played a large part in this happening.
Overall, I am not satisfied that the father has the capacity to parent these three young children. This is a significant responsibility and requires much time and dedication. I am not satisfied that the father has shown a willingness to support the children and acknowledge their emotional needs.
This is seen in various aspects of the father’s parenting, from not understanding the importance of X attending his school concert that he was performing in, his refusal to take the children to their much loved sporting activities, his refusal to allow the children to even bring their teddy bears to his home and his use of language directed to the children in a tone that causes them fear and alarm. The father’s tone and talk, particularly when he is angry and which he routinely directly to the mother, (and which she described to this Court and the State Magistrate as being the same tone and manner he used towards her) has been used towards X. It has effected X so much that X was so upset he did not wish to see his father for 10 weeks. The mother encouraged him to restart seeing the father and eventually he did. Similarly Y has been distressed during phone calls with the father and dropped the phone crying.
The mother has demonstrated that she is prepared to put the children’s needs first and foremost. The father has not helped even to house the children after separation, he has failed to pay regular financial support and ceased paying his obligations on the family home, such that the children and mother had to leave their former home, in circumstances where they had no financial support. The mother has been able to find a home for the children and ensure that they continue their education and deal with their social and other needs without financial support from the father. The father informed the Court after separation he had no intention of working for a period of months and offered no explanation as to how the mother and children were to survive financially.[4] This conduct shows no responsibility towards parenting, and no capacity to provide for the needs of the children.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
[4] Exhibit M15, paragraph 42 & 43.
I have nothing to add.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
S.60CC(3)(i) S.60CC(3)(j) Any family violence involving the child or a member of the child’s family; S.60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person
The mother acted for her own protection in moving in with her parents and sought an order under the State domestic violence legislation.
The State Magistrate accepted the mother’s evidence in relation to the barrage of insults made by the father in the presence of other friends and family and at the children’s school. The father sent hundreds of text messages at various periods which are set out in the judgment of His Honour Magistrate Morrow, who found that; in a period of about four weeks “Ms Prescott states from separation on 20th August 2011 to 22nd September 2011 she received 91 text messages and missed calls from Mr Prescott and she responded 11 times. From 23rd September to 1st October 2011 Mr Prescott sent to her 234 message [sic] and/or missed calls and she responded 72 times.”[5]
[5] Exhibit ICL 8, paragraph 20.
That father has denigrated the mother in his direct insults to her as referred to in her material and elsewhere in these reasons and in the findings of the Magistrate Morrow including a text message from the father to the mother in relation to the disco incident: Go fuck yourself.
I note the Magistrates findings as to the father giving explanations which did not have the air of reality about them and not being behaviour he would have expected in an ordinary person unless they were angry and wanted to have another confrontation. Magistrate Morrow stated “to me, in his own mind, he subjectively believes he has done nothing. He is immersed in the belief that Ms Prescott is trying to upset him without objectively seeing the results of his actions are having on Ms Prescott. She is upset and distressed about his behaviour.”
This observation of Magistrate Morrow resonates with the views of the Report Writer Mr C and this Court.
Magistrate Morrow was satisfied that the father had engaged in persistent form of conduct which was annoying and distressing to the mother so as to constitute harassment under the State legislation.
Magistrate Morrow noted that the parties were in the midst of their Family Law Proceedings and the depth of the current anger of the father towards the mother. He noted also however, that there were lawyers involved, and that the parties were to attend post separation co-operative parenting program offered at the (omitted) Community Centre in (omitted). He held high hopes for the future and ultimately was not satisfied that there was sufficient evidence before him that the father was likely to commit a further act of domestic violence. In doing so, His Honour pointed out that if an incident of domestic violence occurs again in the future, that another application may be made by the aggrieved.
Orders were subsequently made for the wife to be appointed as trustee for sale of the property given the husband’s obstructionist attitude. Other buyers were found however, those contracts fell over as well. On 10 March 2014 (omitted) Bank issued a request to vacate and the wife was directed to return the keys to (omitted) Bank.
After separation, the husband also walked away from the franchise that he and the mother had purchased for a sum of $15,000.00 and operated through their company (omitted) ((omitted)) Proprietary Limited. The husband had worked through the franchise as a contractor for which income was used to support the family during the marriage. After walking away from the franchise, the husband secured his own employment continuing to utilise his skills as an (occupation omitted) and retained the income for his own purposes. The father walked away from the franchise and said he did this because he wanted to.
The wife, who did what she could with the business and tax documents during the marriage, was left to solely take the steps necessary to prepare and complete the Business Activity Statements for September 2010 through to June 2011 and give directions to accountants for the preparations of the necessary reporting financial documents such as Directors Reports. Taxation issues were left to the wife to deal with and there are debts of $8423.94 owing to the Tax Office. The wife has collated and dealt with the creditors relating to the franchise.
The father also from separation up until around December 2013 did not pay child support and the debt was up around $10,000.00 when the child support agency pursued him for outstanding funds. An arrangement was entered into by the father to pay somewhere in the vicinity of $2,000.00 a month to repay the arrears. Child support is intended to be paid regularly to help with recurring expenses of raising children such as putting food on the table, clothes, haircuts and school books and clothing. In not paying regularly the father has left the financial burden of raising the children completely to the mother. At the time he was not paying his child support he was of course also not paying the mortgage on the former matrimonial home. As I have said, but for the kind assistance of the mother’s parents, the mother and children would have been homeless and seeking shelter. The father told the Court he had no suggestions for their financial survival.
At the time of trial the mother continued to live with her parents. The husband was living with his partner.
The children have required counselling post separation and the father’s attitude towards the mother’s request to pay half of the counselling was to advise that this is what child support is paid for, “this also covers operations and doctors’ bills so please don’t ask for more money your client needs to learn how to budget.”[10] The father’s response to the mother’s request to pay the cost of an operation to have X’s tonsils removed has been similar in that he has not agreed to pay one half of the operation costs that half amounting to around $1,800.00. The father, who has no medical qualifications, indicated that there were other methods that could have been adopted rather than an operation as recommended by the specialist. The father’s advice came from research he and his new partner did on the internet and in libraries.
[10] Exhibit M20.
It is clear from the evidence that the mother has made the 100% of contributions to the welfare of the family and preservation of the parties’ assets post separation and the father has made negative contributions.
The mother has been the primary parent post separation for just on three years and she has made significant contributions in this regard. The mother and children having nowhere to live and moving in with the mother’s parents, have had to travel the journey each day to and from the children’s school in (omitted) which, whilst it may have been close to the matrimonial home, was certainly not close to the home of the maternal grandparents. The mother has travelled 30 minutes in to town and out of town every day to take the children to school and incurred significant costs in fuel alone to enable the children to continue to receive their education. The father would not agree to the children changing school closest to where they were living with the mother and this has caused the mother’s a further significant financial burden and she has made significant contributions in ensuring that the children have been educated. This decision caused financial hardship as well as inconvenience.
The father did not pay any of the rates whilst he was living at home and the rates fell into arrears. Those arrears are over $7,000.00. This, like the mortgage, is a cost that the father could have paid. I am satisfied that the father was earning money sufficient to pay the rates and mortgage as he had done throughout the marriage.
Assessment
In terms of assessing contributions up to the point of separation the contributions had been equal. In coming to this conclusion I am aware that the husband received a modest personal injuries payout of $25,000.00 prior to the birth of the children. The mother says that the sacroiliac problem has since resolved. The husband’s grandmother told the husband and wife she would leave them $20,000.00 to enable them to complete their renovations. The grandmother passed away in May 2011 however, the mother has no knowledge of any funds received by the husband from that estate.
In the three years post separation, the mother has been primarily if not solely responsible for raising the children and contributions to the welfare of the family and she has made financial and non-financial contributions to the preservation and maintenance of the property. In contrast, in terms of being responsible for raising the children and making contributions to the welfare of the family and other non-financial and financial contributions, I am satisfied that father has made next to no contributions, save for the time he spends with the children. I am satisfied that the father has instead embarked upon a campaign of financial sabotage in relation to their equity of the former matrimonial home. He ensured that it fell into significant arrears when he could have otherwise paid the mortgage repayments. He repeatedly refused to assist to save the situation which ultimately resulted in a forced mortgagee sale by the bank and a loss of all equity.
The mother tried to save the house by using some of the funds that were available at a point in time from the sale of an investment house. I am satisfied that the father made threats to the effect that he would go bankrupt and he would make sure that the mother had nothing. The father has acted in reckless disregard of his financial obligations and deliberately not paid the mortgage, not paid the rates, not paid child support and made no effort to save the former matrimonial home from effectively a fire sale. I consider that this action has made the mother’s parenting of the children and contribution to the welfare of the family much more difficult than they would have otherwise been had the father continued to comply with his obligations. I am also satisfied that the father has acted in complete disregard for his own children’s welfare in this financial abuse.
I am also satisfied that the father has deliberately refused to engage in a process of disclosure and that this also was premeditated on his part. I refer (but do not repeat) all of the correspondence that the father has written to the mother’s solicitors in this regard and his flippant attitude.
Noting the father’s conduct in dissipating the asset pool I am satisfied that the mother’s contributions as at the date of the trial exceed those of the fathers by a further 20% bringing her entitlement based contributions to 70% and 30% to the father.
S. 75 (2) factors
I will now turn to examine whether the percentage based entitlement should be adjusted to allow for any of the relevant s 75(2) factors.
In relation to their respective incomes, there is significant disparity of income between the mother and father. The father is well qualified and has various trades to rely upon. He is a (omitted), a (omitted) and he has two modules to go before he has a (omitted) qualification. The father used to be a (occupation omitted) at the (employer omitted) in (omitted). He has worked as an (omitted) and a (omitted). He has qualifications as an (omitted) and can teach these trades.
The father has worked at various (omitted) companies around (omitted) and is now earning at least $80,000.00 as a base salary. The father’s most recent payslips indicates a year-to-date earnings of around $92,000.00 derived through his income at (employer omitted).
The mother has no particular specialised skills and is currently earning $150.00 a week as a casual with (employer omitted). The mother is employed for 10 hours a week and those hours are based around her child rearing commitments. The mother works during the times that Z, the youngest child, is at kindergarten. The mother also prepares and paints (hobby omitted) and other memorabilia and other craft work two days per week between 9:30 am to 2:30 pm.
The other matter which is a most significant consideration under s.75(2) is that the mother is the primary carer of all three still young children at ages 9, 6 and 4. Given the orders made for the children to remain living with her, she will continue to be the primary carer of three children.
There is no evidence of either party having any medical condition that is likely to impact on their income earning capacity. The father gave oral evidence that he has a hernia and that in his view it is likely to be a condition that will preclude him from ever working again. I reject this assertion as being without foundation and without evidence. As part of the father’s continued contemptuous attitude shown to the Court throughout his evidence, on hearing there was no medical evidence to support such an assertion, he offered to show the Court his hernia.
In regard to s.75(2)(o) being any other factor or circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account, judging by the father’s conduct to date I consider it quite likely that he will stop work at any time in the future that he feels like it. He has no sense of obligation in terms of supporting his children or paying his joint debts or paying any spousal maintenance to the mother. He has however instead chosen to invest in his current de facto partner’s house whilst ignoring his legal obligations incurred from his relationship with the applicant and his current children.
In terms of the s.75 (2) factors, I find that they are overwhelmingly in favour of the mother. She is the primary carer of three children, it is highly likely she will not receive any child support in the future given the father’s suggestion that he is going to go bankrupt and or cease working or both, and noting the significant disparity in terms of income earning capacity.
Added to this, the non- superannuation asset pool is in the negative, with the debts amounting to $130,270.30 and the assets $35,038.00. The superannuation is very modest estimated at around $71,000.00. The pool is still in the negative, even adding the Superannuation in. That sum is split over five different superannuation plans one of which in the father’s name is too small for a splitting order ((omitted) valued at $1,980.24 the father’s super), which he will therefore retain. Effectively this means that although his percentage distribution is noted as nil, the father is retaining an asset being superannuation valued at almost $2,000.00 at the time of trial.
The mother at age 34 will be waiting over 20 years before any of these funds would vest pursuant to a retirement. Therefore in the immediate future and for the years ahead in terms of her child raising and the expense associated in housing three children, I am satisfied that the full burden of this will fall to the mother. There is also no certainty that the mother will receive ongoing child support as no doubt this will disappear when the father becomes a bankrupt which is what he indicated to the Court is likely to occur or alternatively when he gives up work or just decides not to pay to support his children.
This is a case where a single mother with three children, still relatively young at aged 9, 6 and 4 who will have the primary responsibility for paying for the children’s costs of housing education and day-to-day cost of living, is effectively walking away with no real assets that will assist her in this regard. Given the father’s attitude and conduct a date, it is highly likely that the mother will be pursued in relation to the debts rather than the father. I have no confidence that the father will pay any money towards their debts either voluntarily or when he is ordered to do so, he has expressly stated that he will go bankrupt unless the Court orders are fair in his view.
In the circumstances of a most modest asset pool, and three young children, and significant debts I consider that the appropriate uplift factor in favour of the mother appropriate in the circumstances of this case to be 30%. By adding this to her contribution based entitlement of 70%, the wife’s entitlement becomes 100% of the assets and the husband’s percent to nil.
I am satisfied that given this very small superannuation pool and the overwhelming liabilities of the parties which far exceed the value of the superannuation funds, that it is just and equitable to make the orders for superannuation splitting as sought by the mother. The father will however, retain the superannuation fund with (omitted) as identified in the Orders the Court is making, as the amount of almost $2,000.00 is too small for a splitting Order.
The mother seeks an order that the remaining funds held in the trust account of her solicitor be used to pay liabilities in relation to taxation liabilities of the party’s company, any outstanding rates and monies owing to (omitted) Accountants practising accountants and that the shortfall be paid by the respondent. I intend to make this Order.
I am satisfied the mother has no capacity to pay towards the remaining outstanding debts which were accrued through the deliberate actions of the father. The father has a good earning capacity and I am satisfied if he wished to, he could make arrangements for a payment plan in relation to the debts. The father has no intention of doing so. As the father said in his closing submissions It’s a chess game and I have been playing it and I will do what is necessary after the orders have been made and I am very smart and can dumb when I need to. I have nothing more to say Your Honour.
Alleged loan to the father from his partner
The father sought orders that the funds held in the trust account namely, ($16,438.80) be applied to payment of a credit card debt which he alleges has been paid out by his de facto partner. The father seeks orders to have his de facto partner repaid in full from their joint funds and thereafter for the balance of all the debts to be the responsibility of the mother. In his submissions the father indicated that he might consider paying one half if things went his way. There is no evidence that satisfies the Court of the father having any genuine intention to pay these outstanding debts.
Whilst the mother agreed that the debt alleged to have been paid out, a credit card, did not seem to be in existence any more, I accept her evidence that she really had no idea who paid it or if it is in fact paid out. The father’s evidence is that his de facto partner paid out the credit card debt however the Court was less than satisfied with the evidence produced to substantiate this from both the father and his partner. The Court is also not able to accept the father’s evidence at face value or that of his de facto. The father has also failed in his obligation of disclosure. He seems to want to cherry pick which debts are to paid and which are not. In any event, this arrangement was not entered into by the mother who was not consulted about any alleged loan which is, if it exists, unsecured loan. The father and his de facto have entered into their own joint tangled and self-serving web of financial arrangements. Ms R also referred to “a pre-nuptial agreement” which has not been produced. I note the father’s evidence that he pays $400.00 per week, quite a hefty amount, towards Ms R’s mortgage. He has continued to do this whilst there are far more pressing liabilities owed by the father as seen in the list of joint debts in the mother’s material. The father is building up an asset of his own whilst allowing the assets of he and the wife to totally dissipate.
On the evidence before the Court, he appears to describe having an interest through a constructive trust interest in the home of his de facto. This has been achieved through refusing to pay his secured debts. Given the income of the father, the asset pool and the liabilities, and all of the circumstances I am satisfied that it is just and equitable that if the father has an indebtedness to his partner in relation to credit cards debts incurred during the parties’ marriage, or any other matter, that the husband should be solely responsible for payment of that debt from his own post separation funds. It would be a bizarre result in all of the circumstances for the father’s de facto to be given priority and paid back a sum of money and thus remove it from the possibility of paying back the parties creditors or alternatively distributing the balance to the wife. I have a strong impression that the alleged payment by the defacto is a contrived arrangement.
Other debts
I have already indicated I intend to make an order that what remains of the equity of these parties which is held in the mother’s solicitor’s trust account, be directed toward debts as set out in the mother’s material. There is no basis at all for seeking an order that the mother be left responsible to pay all of the debts as sought by the father nor is it just and equitable to do so. Given the father’s conduct in deliberately not paying the debts as and when they fell due, it is just more evidence of his vindictiveness towards the mother.
I am also satisfied that part of the father’s agenda has been to cause the mother significant legal costs which he has regularly referred to both orally and in correspondence in express and crude terms. He has said it over the most benign matters as seen in references included throughout the correspondence that is before the Court in the mother’s material and exhibits. He has refused to communicate with the mother saying he will only deal with her solicitor. It was also observed by the family Report writer Mr C as being part of the father’s agenda, particularly noting the father’s constant refusal to discuss issues with the mother, instead telling her he would only deal with her lawyer.
I will make the property Orders sought by the wife as in the circumstances, I am satisfied that they are just and equitable.
Mother’s application for Spousal maintenance
The mother seeks an order for spousal maintenance in the sum of $200.00 per week, for a period of three years from the date of this Order.
Section 72 (1) of the Family Law Act 1975 sets out that a party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if and only if, that other party is unable to support themselves adequately, whether by reason of having the care and control of a child of the marriage who has not yet reached 18 years; by reason of age or physical or mental incapacity for appropriate gainful employment; or for any other adequate reason having regard to the relevant matters in s.75 (2) of the Act.
Essentially the applicant has to demonstrate a need for spousal maintenance and that the respondent has the capacity to pay spousal maintenance.
The wife’s income at present is $150.00 per week. The Act requires that I disregard her entitlement to social security payments for the purposes of a spousal maintenance claim. I am satisfied that the mother has spent many years as the primary carer of three children and that she has been out of the paid work force whilst undertaking this parenting.
The mother has no particular skills and has a very modest income from some part time craft work. Given the age of the children, I am satisfied that she is not adequately able to support herself given her parenting obligations and her lack of skills.
The father has excellent qualifications as referred to elsewhere in this judgment. He has maintained the ability to obtain good employment. He says he is a valuable employee at his current work. His income is greater than the father indicated in his sworn evidence. His minimum income is $70,000.00 however, his income at the trial was estimated at $92,000.00 given the evidence “called for” being his pay slips. I am satisfied that the father has the capacity to pay financial support for the mother.
Throughout this property matter, the father was not prepared to make proper financial disclosure. I am satisfied he did this in order to hide his income and his financial interests. He is in the luxurious positon of electing to contribute towards his defacto’s mortgage in the sum of $400.00 per week. The father has not paid child support, he says he did this on legal advice.
Having regard to the financial evidence before the Court, and the father’s income earning capacity, the length of the marriage, and a standard of living that is reasonable in all the circumstances, I am satisfied that it is just and equitable that the father pay to the mother, the sum of $200.00 per week by way of spousal maintenance.
The initial order will be for a period of 3 years. It is to be hoped that in that time the mother may be able to increase her qualifications and earn a greater income noting however, her significant child rearing obligations.
In the circumstances of the father’s non-disclosure and contempt shown for the mother and the Court processes, I intend to order that the payment be made by way of automatic deduction from the father’s salary whenever possible or from the father’s bank account at which he is to set up an automatic deduction. The election as to the method of payment will always be as indicated by the mother and the father will be ordered to do all acts and things to ensure compliance with the method of payment nominated by the mother.
Father’s application for spousal maintenance
The father also seeks orders for spousal maintenance in the amount of $250.00 per week for a period of 10 years. As can be seen from the overall financial position of the parties and the income for the mother, this application is entirely without foundation and I am satisfied that it is a frivolous and vexatious application. The father admitted under cross-examination that his request for such orders was ludicrous. The father said that he applied to this order “because I can.” There is no sign in the father’s orders sought that he has approached this matter genuinely or that he has taken this application seriously. The Court is satisfied that he has regarded the property and spousal maintenance applications as an opportunity to create difficulties for the mother including her incurring further unnecessary legal expense. The father has also showed contempt towards the Court processes including his flippant and arrogant answers under cross-examination. The application constitutes an abuse of process.
The mother has an income of $150.00 a week and any suggestion that she would pay spousal maintenance is absurd. The father’s application does not meet the threshold required as set out in s.72(1) in that he does not have a need for financial support by reason of having the care and control of a child under 18, or by reason of his age or physical or mental incapacity for appropriate gainful employment or any other adequate reason having regard to any other relevant matter referred to in subsection 75(2). He has a greater income than the mother and is able to support himself. The mother does not have the capacity to pay spousal maintenance. His application is dismissed. I regard it as a vexatious application.
Father’s application that mother pays him child support
Father also seeks an order that the mother pay to him child support in the amount fixed in the amount of $450.00 per week. This application is entirely vexatious and misguided and the Court notes that there is an assessment for the father to pay child support currently in existence and that any variations to that order would need to be pursued through other channels.
The father indicated under cross examination that he brought this application “because I can” and that he had no idea that the Court had no jurisdiction to make such an order. It was obvious to the Court that the father had regarded the preparation of orders sought as something of a joke and that he was quite smug in his answers that he did it because I could. The father explained to the Court that he was arrogant “and that being arrogant had got him where he was today.” The father’s arrogance was on display throughout his cross examination and in the presentation of his case. The application for child support is dismissed.
I certify that the preceding two hundred and fifteen (215) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 27 January 2015
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