PROCTOR & PROCTOR
[2016] FCCA 613
•23 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PROCTOR & PROCTOR | [2016] FCCA 613 |
| Catchwords: FAMILY LAW – Property adjustment – competing property adjustment applications – application for leave pursuant to section 44(3) – contributions – assessment of section 75(2) factors – failure to adduce evidence proving liabilities – failure to give proper disclosure. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 44(1), 44(2), 44(3), 44(6), 60B, 60CA, 60CC, 60CC(2A), 60I, 61C, 61DA, 61F, 64C, 65DAA(5), 65DAC, 65F, 68B, 67Z, 67ZBA, 67ZBB, 69ZN, 69ZT(1), 69ZV, 69ZW, 75(2), 78, 79(4), 90AE(3)(c) |
| Stevenson v Hughes [1993] FamCA 14 Baker v The Queen [2004] HCA 45 Aldridge & Keaton (2009) FLC 93-421 M & M [1988] HCA 68 Holden & Holden [2015] FCCA 788 Tamaniego & Tamaniego [2010] FamCAFC 254 Oxenham & Oxenham [2009] FamCAFC 167 Hedley & Hedley [2009] FamCAFC 179 Hall & Hall (1979) FLC 90-679 Cox & Cox (1981) FLC 91-068 Neocleous & Neocleous (1993) FLC 92-377 Carlon & Carlon (1982) FLC 91-272 Morgan & Flanagan [2014] FamCA 248 Weir & Weir (1993) FLC 92-338 Other Articles Cited: Family Court’s Violence Review” Chisholm 2009 Evidence (Business Records), NSWLRC 17, July 1973 Allen, James, “The Three 'Rs' Of Recent Australian Judicial Activism: Roach, Rowe and (No) Riginalism” 36 Melb. U. L. Rev. 743 2012-2013 Fabio Almeida, “Judicial activism: an (un)expected result of legal interpretation in complex societies?”, University of Brasilia December 22, 2013 Keenan D. Kmiec, “The Origin and Current Meanings of Judicial Activism” California Law Review Volume 92, Issue 5at 1451 Sackville, Justice Ronald ,“Courts and social change” (FCA) [2004] FedJSchol 16, Australian Lawyers and Social Change Conference Canberra 23 September 2004 Schiller, Herbert, “Communication and Cultural Domination”, 1976 Routledge Hon. John Fogarty A.M., “Unacceptable Risk – A Return to Basics”, (2006) Australian Journal of Family Law, 20 AJFL 249 AG Brandis and Minister for Women Michaelia Cash 8 March 2016 |
| Applicant: | MS PROCTOR |
| Respondent: | MR PROCTOR |
| File Number: | PAC 1846 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 24, 25 November 2015, 2 and 3 March 2016 |
| Date of Last Submission: | 3 March 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 23 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Friedlander |
| Solicitors for the Applicant: | Hemant Prakash & Associates |
| The Respondent appeared in person |
| Counsel for the Independent Children’s Lawyer: | Ms Beck |
| Solicitors for the Independent Children’s Lawyer: | Mills Oakley Lawyers |
ORDERS
The husband shall forthwith and within 48 hours of this Order deliver to the wife’s solicitors a written authorities directed to each of (omitted) and The Department of Human Services (Centrelink) which authorises each of those agencies to release to the wife’s solicitors sufficient information to confirm what debt, if any, and in what amount is owed by Mr Proctor to Centrelink and as regards the execution and delivery of such authority time shall be of the essence.
Each of the parties shall forthwith and within 14 days of the date of this Order, do all things, sign all documents and give all consents, authorities and instructions as may be necessary to authorise and direct the wife’s solicitors to deal with and distribute and apply the monies presently held by them upon trust for the parties (being a sum of $144,000) as follows and in the following priority:
(a)Provided that Mr Proctor has complied strictly with Order 1 hereof, in payment to Centrelink (or (omitted) acting as collection agent on behalf of Centrelink) the amount that is advised by Centrelink or their collection agent as due and payable to Centrelink by Mr Proctor or the amount of $3,091.88 whichever is the lesser (and provided that in the event that Mr Proctor has not complied strictly with Order 1 hereof then no payment to Centrelink shall be required or made);
(b)In payment to Ms Proctor or as she may direct in writing of a sum of $131,779.40;
(c)In payment to the Australian Taxation Office of the sum of $4,245.30, being payment of the debt owed by Mr Proctor to that agency created by the Order for Costs made 12 November, 2015;
(d)In payment to Centrelink of any amount which remains due and payable to them by Mr Proctor following payment of an amount of $3,091.88 per Order 2(a) above;
(e)As to the balance then remaining to Mr Proctor.
Each party shall indemnify the other and forever hold the other harmless as regards any debt in the name of and for which that party is liable or for which debt either party alleges that they are party.
Pursuant to section 78 of the Family Law Act 1975, each of the husband and the wife shall be declared to be the sole and absolute owner at law and in equity and as against the other of:
(a)All monies in their respective possession, custody or control and whether held in cash or on deposit with any financial institution;
(b)All contributions to any benefits and entitlements arising from membership of any superannuation fund;
(c)Any motor vehicle in their respective possession, custody or control;
(d)All shares in their respective possession, custody or control;
(e)All furniture, jewellery, chattels and personalty in their respective possession, custody or control.
All prior parenting Orders with respect to the children:
X born (omitted) 2002; and
Y born (omitted) 2004;
shall be and are hereby discharged.
Y shall live with her mother Ms Proctor.
Ms Proctor shall have sole parental responsibility for Y.
Pursuant to section 68B of the Family Law Act 1975, Mr Proctor shall be and is hereby restrained from:
(a)Approaching Y or attending upon or being within 100 metres of Y’s home or school;
(b)Contacting or attempting to communicate with Y by any means including via third parties;
(c)Taking Y into his care or having Y in his care;
X shall live with his father Mr Proctor.
Mr Proctor shall have sole parental responsibility for X.
A Family Consultant is requested to immediately provide to Ms Proctor and Y such assistance as may appear useful, necessary or desirable in facilitating that child’s immediate transition to the mother’s care.
Discharge the Independent Children’s Lawyer.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Proctor & Proctor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1846 of 2014
| MS PROCTOR |
Applicant
And
| MR PROCTOR |
Respondent
REASONS FOR JUDGMENT
The Proceedings
Representation
Material considered
Notice of risk
History of proceedings
Parties proposals
Application of the rules of evidence
Exclusion of evidence
Limitation of evidence
Admission of business records and reliance thereupon
Browne & Dunn
Jones & Dunkel
Expert Evidence
The Independent Children’s Lawyer
The evidence
Evidence in the father’s case
Evidence in the mother’s case
Police Records
Departmental records
The video exhibit destroyed by Mr Proctor
Counselling records
Medical records
The Family Report
Financial records
Debt alleged to Mr H
Debt to Baycorp
HECS debt
Centrelink debt
Debt to Ms P
Alleged debt to Mr C
Electricity bill
Debt to the Australian Taxation Office
Proceeds of sale of the home
Superannuation
Other assets
Available nett pool
Allegations of cultural imperialism and judicial activism
Determination of Parenting Issues
Legislative Pathway
Unacceptable risk
Family violence
Adequacy of parenting & ability to meet parental duties
Parental responsibility
Section 60CC – primary considerations
Additional Considerations
Views
Nature of the children’s relationships with each parent and others
The extent of participation of each parent
Obligation to maintain the child
Likely effect of change
Practical difficulty and expense
Capacity of parents and other’s to meet emotional needs
Maturity sex, lifestyle and background of the children and parties
Aboriginality & culture
Attitude to the children
Family violence
Family violence orders
Avoidance of future proceedings
Leave to apply out of time
Does the wife have a prima facie case being a reasonable claim that requires hearing?
Would the wife suffer hardship if leave were not granted?
What is the wife’s explanation of delay?
Is there hardship and prejudice to the husband if leave is granted?
Disclosure
Contribution
Section 75(2) adjustment
Conclusion re property orders
The Proceedings
These proceedings involve pleas for relief regarding both parenting and property adjustment.
The parties to the proceedings are Ms Proctor and Mr Proctor who are the Applicant mother and Respondent father respectively.
There are four children of the relationship between these parties. The proceedings relate only to the two youngest children, namely:
X born (omitted) 2002 (currently aged 13 years); and
Y born (omitted) 2004 (currently aged 11 years).
There are two adult children of the relationship, namely, Ms P (who is 23 years of age) and Mr R (who is 20 years of age).
All four children presently live with their father Mr Proctor. The eldest child Ms P has given evidence in these proceedings. Both Ms P and Mr R participated in Family Report interviews.
Mr and Ms Proctor were previously married. They were divorced approximately 21 years ago in (omitted) 1994, the Application for Divorce having been filed (omitted) 1994, (being less than 12 months after the date of separation alleged by Mr Proctor and Ms Proctor alleging that separation had not occurred).
Ms Proctor asserts that that at the time that the Application for Divorce was made and when the Divorce was granted that the parties continued to live together.[1]
[1] Paragraph 21 of Ms Proctor's Affidavit sworn or affirmed 17 September 2015.
Mr Proctor asserts that the parties separated in or about (omitted) 1993 and that they reconciled and resumed their cohabitation following the Divorce (in or about 1994 or early 1995)[2] and continued to live together until 2011.[3]
[2] Paragraph 37 of Mr Proctor's Affidavit sworn or affirmed 3 June 2014. Whilst this assertion is made by Mr Proctor it is to be noted that he asserts, at paragraph 149 of the same Affidavit that, “it was Ms Proctor who was defrauding Centrelink by claiming that she was separated from me and had the sole care of the children”. The two statements are irreconcilable. At paragraph 151 Mr Proctor makes reference to the “true reason for our Divorce”. At paragraph 155 of the same Affidavit Mr Proctor alleges that the parties separated in 1993/94. Paragraph 187 of the same Affidavit infers that the parties did not separate in 1993/94.
[3] Mr Proctor describes the relationship between he and Ms Proctor as a “…Mostly volatile on/off relationship for the entire time that we were together”. Subject to controversy as to whether the parties did or did not separate for a period from 1993 until 1994/95, there is no evidence led by Mr Proctor to suggest that the parties separated again after 1995 and until an unspecified date in 2011. Notwithstanding that Mr Proctor has, at paragraph 135 of his Affidavit, asserted that final separation “…Was in the middle of 2008, when we lived in separate rooms we hardly talked – except for her abusing me and the children”. Mr Proctor put to Ms Proctor in cross-examination that final separation occurred in 2011. Ms Proctor agreed. Mr Proctor adopted this date in the further conduct of his case and it would appear an agreed fact.
It is certainly common ground (leaving aside the question of whether separation had, in fact, occurred and thus leaving aside the question of whether the parties had reconciled or had simply continued to live together) that for the period 1995 – 2011 the parties lived together in a relationship and during this period the two children the subject of these proceedings were born.[4]
[4] Ms Proctor concedes (paragraph 36 of her Affidavit 19 November 2015) that brief separations also occurred for a period of approximately 6 months commencing April 2008 and in 2011.
Following a period of separation, the parties again resumed cohabitation in late 2011 or early 2012.[5] The parties then lived together with the children of their relationship, albeit living separately and apart under the one roof without reconciliation of their relationship.
[5] See paragraphs 213 and 214 of Mr Proctor's Affidavit. Ms Proctor had alleged (paragraph 22 of her Affidavit 17 September 2015) that final separation had occurred January 2014 being approximate to the sale of the home the title of which was in the sole name of Mr Proctor and in which the parties and the children had lived until the sale. I accept the concession by Ms Proctor during her cross-examination that the relationship had come to an end, albeit with the parties continuing to reside separately and apart under the one roof, during 2011 and immediately preceding the brief (some months) separation of the parties. Ms Proctor's Affidavit evidence, to the extent that it is at variance with her concession during cross-examination, does not, to my mind, diminish her credit as the contra assertion related to the physical separation of the parties and is more consistent with the balance of Ms Proctor's evidence than Mr Proctor's assertion of separation in 2008 which assertion was abandoned by him at hearing.
The parties physically separated and ceased to live in the same accommodation in February/March 2014 following the sale by Mr Proctor of the property in which the parties were then living. The title of the property was held in Mr Proctor’s sole name. Like so many aspects of the evidence in these proceedings there is no common ground between these parties as to whether Ms Proctor had prior knowledge of Mr Proctor’s intention to sell the home let alone prior knowledge that the sale was completed. I am satisfied that, in all probability, the first notice that Ms Proctor had of the sale of the home was at or immediately following completion of the sale.[6]
[6] This relates, in part, to issues of credit. It is also based upon the concession by Mr Proctor that, contemporaneous with completion of the sale, that he instructed attorneys from a Community Legal Centre to write to Ms Proctor on his behalf advising that the home had been sold. There would appear to have been no purpose in such correspondence if Ms Proctor was already aware of the sale of the property. Further, the documents produced with respect to the sale allowed a period of four weeks “rent” following completion of the sale rather than vacant possession being rendered. This would suggest that Mr Proctor had anticipated, consistent with that set out in the correspondence forwarded on his behalf and in accordance with his instructions, that some time would be needed to ensure vacant possession could be rendered. This is also consistent with Ms Proctor’s evidence as to earlier attempts by Mr Proctor to list for sale and sell the home (paragraphs 53 – 55 of Ms Proctor's Affidavit 17 September 2015). Mr Proctor concedes (paragraph 246 of his Affidavit 3 June 2014) that no “for sale” signs were erected at the property and I do not accept Mr Proctor's evidence as to the basis for this.
At all times that the parties lived together, prior to and post their Divorce, conflict was circumjacent to their relationship. There is significant controversy as to the instigation of and perpetration and contribution to conflict. There is, however, no issue, nor could there be on the evidence any issue, that significant conflict occurred within the household and to which the two children the subject of these proceedings were substantially exposed if not directly involved.[7]
[7] Certainly, I am satisfied, as will be addressed in a discussion of the evidence shortly, that the two adult children were directly involved in the conflict within the home and particularly, although not solely, by reference to Exhibit ICL2 which Exhibit was destroyed by Mr Proctor prior to conclusion of the hearing.
It is common ground that the four children of the relationship have lived with their father, Mr Proctor, since February/March 2014.
The jurisdictional basis of the plea for relief relating to parenting is clearly established. The parties to the proceedings are the children’s parents and are entitled to make Application for parenting Orders.[8]
[8] See section 64C Family Law Act 1975.
The jurisdictional basis of the plea for relief with respect to property is more complex. On the basis that the parties have previously been married it would be possible for Ms Proctor to proceed under Part VIII of the Family Law Act 1975. It would also be possible for Ms Proctor to proceed under Part VIIIAB of the Family Law Act 1975 and on the basis of the de facto relationship that subsisted between the parties, albeit with periods of interruption, from 1993/94 to 2011. In either case the totality of the relationship between the parties would be considered.
Irrespective of the jurisdictional basis of the plea for relief it would be necessary for Ms Proctor to successfully prosecute an Application to apply out of time.[9] Leave was granted to Ms Proctor, during the course of the trial, to amend her Application to seek such leave. I will deal with that issue separately and in a consideration of the plea for financial relief.
[9] Section 44(3) or 44(6) of the Family Law Act 1975.
Representation
Ms Proctor has been continuously represented throughout these proceedings by the same attorneys. Ms Proctor was represented by Counsel at hearing.
The interests of the children the subject of the proceedings have been independently represented throughout the proceedings or at least since the joinder of parenting issues.
The Initiating Application filed by Ms Proctor 23 April 2014 did not seek any parenting relief. That Application, which was subject to an Application for abridgment of time dealt with by a Registrar in Chambers on the date of filing, arose in circumstances of some urgency wherein, on Ms Proctor’s case and as I accept was the case, the home in which Ms Proctor had been living had been sold without her prior knowledge, the proceeds of sale distributed to Mr Proctor without any disclosure or accounting and Ms Proctor was being visited by various persons, including Mr Proctor and the purchaser of the property, requiring her immediate vacation of that property.[10] It is entirely unclear what arrangements were in place for the care of the children at the time that the sale of the Property C home concluded.
[10] Paragraphs 53 – 66 inclusive of Ms Proctor's Affidavit 17 September 2015.
The issue of parenting was introduced into the proceedings by Mr Proctor through the filing of his Response 4 June 2016.
In the above circumstances I do not infer, as I am invited by Mr Proctor to do, that Ms Proctor was “disinterested” in the children or their arrangements. I accept that the proceedings were commenced in circumstances of financial urgency and that whilst issue with respect to parenting arrangements was live, that the circumstances relating to the sale of the property and advice to Ms Proctor of that fact dominated events at that time.[11] Ms Proctor was in the process of obtaining assistance through a women’s domestic violence service and to obtain emergency or crisis accommodation in response to the circumstances created by Mr Proctor and through his sale of the home without notice to Ms Proctor when the proceedings were commenced.
[11] Consistent with Ms Proctor's evidence she was, at the time that these proceedings were commenced by her, still resident within the home. Further, the parties had not attended Family Dispute Resolution and absent an Application for exemption pursuant to section 60I(9) of the Act, Ms Proctor would not have been entitled to include a plea for relief with respect to parenting. The parties have not ever attended Family Dispute Resolution and I accept, in light of the significant allegations of family violence and abuse raised in the proceedings, that it is appropriate for the matter to proceed to finality without such attendance. It is also noteworthy that Mr Proctor joined the issue of parenting to these proceedings through the filing by him of his Response 4 June 2014 and at which time no Application for exemption from attendance at Family Dispute Resolution was made by him nor was Family Dispute Resolution attempted.
For significant portions of these proceedings and throughout the hearing itself, Mr Proctor has been self-represented. Mr Proctor prepared material on his own behalf[12] and without the benefit, assistance and guidance of an attorney.
[12] The Affidavit of the adult child Ms P was prepared by an attorney who briefly represented Mr Proctor in the proceedings. That Affidavit is offensive to the rules of evidence, leaving aside the operation of section 69ZT(1) of the Act as the material prepared by Mr Proctor on his own account.
Notwithstanding the above, it is to be observed that due process must be afforded to both parties. It is not appropriate to nor will the Court allow favour to a party and differentially apply rules of evidence based upon whether a party is represented or not.
Whilst it is common for parties before this Court to be self-represented, the same rules of practice, procedure and, importantly, evidence apply to them as they apply to parties who are capably legally represented.
One of the purposes of the inclusion of Division 12A (to which provisions I will turn to shortly) may well have been to seek to obviate against difficulties faced by self-represented litigants in preparing material to be filed with the Court in support of their Application or Response. However, the requirements of due process can never obviate against the equal dispensation of justice and application of evidential rules.
The creation of different or unequal requirements as regards the production of evidence or the conduct of a case, by represented and self-represented parties, is inappropriate. To countenance same would be to deny due process to the represented party and, in reality, both parties though especially to the party who is legally represented and required to answer a case which is potentially unanswerable.
The rules of evidence have evolved over a significant period and have, since 1995, been codified by Parliament. The rules of evidence are designed to ensure the integrity of the process and to ensure that each party before the Court is able to do that which is enshrined within our legal process, to properly meet and test a case which one is called upon to answer.
I will shortly turn to a discussion of the rules of evidence and their application in this case. Before doing so, I propose to identify the material relied upon in these proceedings and to briefly canvass the history of the proceedings.
Material considered
In dealing with these proceedings I have considered the following material.
In the case of Ms Proctor, I have read and considered:
a)An Initiating Application filed 23 April 2014;
b)An Amended Initiating Application filed 17 September 2015;
c)Ms Proctor's Affidavit of evidence sworn or affirmed 17 September 2015 and filed the same date;
d)Ms Proctor’s further Affidavit sworn or affirmed 18 November 2015 and filed 19 November 2015;
e)Ms Proctor's Financial Statement sworn or affirmed 17 September 2015.
In the case of Mr Proctor, I have read and considered:
a)A Response filed 4 June 2014;
b)An Amended Response filed (in Court) 18 December 2014;
c)Mr Proctor's Affidavit sworn 3 June 2014 and filed 4 June 2014;
d)Mr Proctor's Financial Statement sworn or affirmed 3 June 2014 and filed 4 June 2014;
e)An Affidavit by Ms P sworn or affirmed 26 October 2015 and filed 27 October 2015.
In addition to the material filed by the parties there are a significant number of Exhibits comprising:
a)Exhibit A – a Family Report dated 2 June 2015 and released to the parties by an Order made in Chambers 4 June 2015;
b)Exhibit B – the Trust Ledger evidencing the sum of $144,000 held by the wife’s attorneys. This document was sought from the wife’s attorneys after the close of submissions and on the basis that the material available did not make clear the amount in fact held.[13] The document was requested with both parties and the Independent Children’s Lawyer cc’ed into the email to ensure all were aware that the document was sought and would be marked as an Exhibit and the correspondence regarding the request is upon the Court file;
[13] Orders had been made at the first Court event which required that Mr Proctor pay a sum of $112,000 to Ms Proctor’s attorney’s to be held on trust. In addition, each party was entitled to receive a sum of $15,000 each ($30,000 in total) from the remaining proceeds of sale. The Trust Statement makes clear that amounts totalling $159,000 were, in fact, paid into the trust account of Ms Proctor’s attorneys and that Ms Proctor’s entitlement of $15,000 was then withdrawn in various transactions.
c)Exhibit A1 - correspondence from a psychiatrist with whom Ms Proctor has previously consulted, namely, Dr G;
d)Exhibit A2 - records from (omitted) relating to Ms Proctor’s presentation and treatment;
e)Exhibit A3 - a draft balance sheet;
f)Exhibit A4 - correspondence dated 27 November 2015 forwarded by Ms Proctor’s attorneys to Mr Proctor;
g)Exhibit A5 - a bank statement from the (omitted) bank regarding the mortgage account which had previously encumbered real estate held by Mr Proctor and sold 2014;
h)Exhibit A6 - settlement instructions with respect to the sale of the property Property C;
i)Exhibit A7 - a Water Bill with respect to the above property;
j)Exhibit A8 – telephone records;
k)Exhibit A9 - correspondence forwarded by Mr Proctor to Centrelink April 2014;
l)Exhibit A10 - records from (omitted) Public School;
m)ExhibitA11 - certain records from the Department of Family and Community Services as tagged;
n)Exhibit A12 - a Minute of Orders proposed and tendered during closing submissions;
o)Exhibit ICL1 - Police records for October 2010;
p)Exhibit ICL2 - a video produced by Mr Proctor in response to a call for production and depicting events at the home previously shared by the parties on an unspecified date. Those events involved both parties and all four children. This Exhibit was destroyed by Mr Proctor during the course of the hearing. The video was stored upon Mr Proctor’s mobile phone and after the video had been played in Court the phone was returned to Mr Proctor with a direction for him to produce an electronic copy of the video. During day three of the trial and with some apparent relish Mr Proctor disclosed that he had destroyed the video by deleting it from his phone;
q)Exhibit ICL3 - certain Police records as tagged;
r)Exhibit ICL4 - certain records of the Department of Family and Community Services as tagged;
s)Exhibit ICL5 - certain Police records as tagged;
t)Exhibit ICL6 - records from the (omitted) Medical and Dental Clinic as tagged;
u)Exhibit ICL7 - certain records of the Department of Family and Community Services as tagged;
v)Exhibit ICL8 - a Minute of Orders proposed by the Independent Children’s Lawyer and tendered during submissions. That document will be discussed in more detail in a discussion of the Independent Children’s Lawyer generally;
w)Exhibit R1 - correspondence from Baycorp legal Pty Ltd addressed to Mr Proctor and dated 26 August 2014 together with a Statutory Declaration by a Mr H and photocopies of two cheques;
x)Exhibit R2 - correspondence addressed to Mr Proctor dated 5 November 2013 relating to a Centrelink debt incurred by Mr Proctor during the 2005/06 financial year;
y)Exhibit R3 - a bundle of bank statements with respect to a mortgage account in the name of Mr Proctor and with the (omitted) bank;
z)Exhibit R4 - school records from (omitted) High School;
aa)Exhibit R5 - a schedule prepared by or on behalf of Mr Proctor suggested to demonstrate the application of funds from sale of the Property C home;
bb)Exhibit R6 - correspondence with respect to legal action commenced by the (omitted) bank in the Supreme Court of New South Wales and seeking a writ of possession for the Property C property;
cc)Exhibit R7 - a Statutory Declaration and a number of invoices from Mr C;
dd)Exhibit R8 - certain Police records as tagged;
ee)Exhibit R9 - records from the (omitted) bank regarding the mortgage account;
ff)Exhibit R10 - a number of documents from Western Union Online relating to overseas money transfers undertaken by Ms Proctor between August 2007 and July 2014;
gg)Exhibit P11 - documents from (omitted) Public School in the form of counsellor’s notes;
hh)Exhibit R12 - documents from (omitted) Medical Centre;
ii)Exhibit R13 - documents from Dr G;
jj)Exhibit R14 - certain documents from the Department of Family and Community Services as tagged;
kk)Exhibit R15 – certain documents from the Department of Family and Community Services as tagged;
ll)Exhibit R16 - certain documents from the Department of Family Community Services as tagged
mm)Exhibit R17 - a Minute of Order tendered by Mr Proctor during his submissions.
Each of the deponents together with the Family Report Writer were required for cross-examination. Each attended and was cross-examined.[14]
[14] The Family Consultant attended twice, having been called at the commencement of the trial (day one) and having been recalled at the close of evidence by the parties (day four). Issues with respect to the Family Report will be considered separately.
Notice of risk
It is noteworthy that neither party has filed a Notice of Risk.
The Application and Response of each party was filed prior to 11 January 2015 when Division 22A of the Federal Circuit Court Rules 2001 came into effect and so as to require that a Notice of Risk be filed with any Application or Response seeking parenting Orders.
The 2006 amendments to the Family Law Act 1975[15] introduced section 60K (now section 67ZBB). Section 67ZBB of the Act requires that in any case in which allegations of abuse or family violence are raised or in which a risk of family violence or abuse is alleged, the Court must:
(a) consider what interim or procedural orders (if any) should be made:
(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii) to protect the child or any of the parties to the proceedings; and
[15] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
(b) make such orders of that kind as the court considers appropriate; and
(c) deal with the issues raised by the allegation as expeditiously as possible…
To trigger these obligations parties are obliged to file a “prescribed notice” particularising any allegation of abuse (section 67Z of the Act) or family violence (section 67ZBA of the Act).
The Notice of Risk is important for three reasons, being:
a)To aid the Court’s role in case management;
b)To notify State child welfare Authorities of allegations within their statutory area of responsibility and, if necessary, trigger investigation and/or intervention; and
c)To trigger and inform the Court’s obligations pursuant to section 67ZBB of the Act and allow the Court to take prompt action to:
i)Gather or commission evidence (such as issuing requests for information to other agencies, making section 69ZW Orders to obtain records from Police and State Welfare Agencies, appointing an Independent Children’s Lawyer or engaging a Family Consultant to prepare a Report);
ii)Manage and address the dispute (such as engaging Family Consultancy Services and/or assessing suitability of Family Dispute Resolution or Family Counselling,[16] consider transfer of the proceedings[17] or granting expedition);
iii)Make Orders for the protection of a child or party (this might include substantive parenting Orders and a consideration of supervision, personal protection Orders pursuant to section 68B of the Act or otherwise).
[16] Sections 65F and 60I(9) of the Act require that the suitability of direction to services be considered subject to allegations of abuse and family violence.
[17] Such as might arise if the matter is, based upon that alleged, within the Magellan List criteria and thus, by reference to the protocol for division of work between the Family and Federal Circuit Courts, appropriate for transfer.
These duties and responsibilities are serious and intended to ensure that all necessary issues are identified, all necessary information obtained and protection consistently provided to victims of violence and their children across all jurisdictions State, Territory and Federal.
It is inexcusable that a statutory mandate to notify the Court of issues of risk to children in the nature of family violence or abuse has been ignored by both parties. That is all the more so in light of the centrality of those issues to this case and to the welfare of these children.
The parties have a history of their relationship causing or requiring involvement with the Department of Family and Community Services commencing no later than 2008 and with the Police commencing in 1998, some 18 years ago.
For the entirety of the lives of these children there has been involvement with the Police regarding events within the children’s home and yet neither party saw fit to comply with the statutory obligations created by sections 67Z and 67ZBA of the Act, obligations to file a Notice of Risk and alert the Court, in the appropriate way, to those concerns.
If nothing else this case is a testament to the necessity and desirability of the rule change introduced by the Federal Circuit Court of Australia requiring that every party file a Notice of Risk. It is regrettable that rules of Court and, perhaps more so, practical impediments to filing[18] are the only means by which it has been possible to ensure compliance with a mandated[19] statutory obligation,[20] including when parties are legally represented and, as officers of the Court, those attorneys have an obligation to ensure their client’s compliance.[21]
[18] Without the Notice of Risk an Application Initiating Proceedings or Response thereto will not be accepted for filing.
[19] “Family Court’s Violence Review” Chisholm 2009 (on behalf of the AG’s Department) at page 80 noted, “There is clear and consistent evidence that Form 4s [the term used by the Family Court whereas the notice used by the Federal Circuit Court should be referred to as a Notice of Risk] are often not filed in circumstances where the law requires them to be ... Since it is clear that over half the parenting cases involve allegations of family violence ... it is obvious that in many cases Form 4s are not being filed as the law requires…”. As a consequence, Chisholm recommended measures to ensure that the forms were filed when they ought to be. In response thereto the Federal Circuit Court Rules 2001 (FCC Rules) were amended.
[20] Parties who do not raise allegations of risk are still required to file the Notice, albeit by answering “no” to each question. In such circumstances the Court has no reporting obligation and the Notice is not forwarded to the Department.
[21] Let alone an obligation of due diligence, to ensure that the affairs of their client are appropriately addressed.
History of proceedings
These proceedings were commenced by an Application filed 23 April 2014. The matter has been concluded some weeks short of the second anniversary of filing. In the context of present delays that is a relatively expeditious hearing and unachievable for matters entering the system now who will wait up to twice as long.
During the time that the matter has been on foot the matter has occupied considerable Court resources. There have been not less than 16 Court appearances including:
a)Four days of trial;
b)Six interim or interlocutory hearings; and
c)Two Conciliation Conferences.
The first Conciliation Conference was adjourned by the Registrar on the basis that the parenting issue had been raised by Mr Proctor in his Response (filed after the Conciliation Conference date was allocated) and, consistent with the Conciliation Conference sheet completed by the Registrar, as the wife, the Applicant, was suggested to have failed to give “discovery”.[22]
[22] Discovery is only permitted with leave under the Federal Circuit Court Rules 2001 rule 14.02). Disclosure, as a common law obligation, continues to apply in all proceedings and Part 24 of the FCC rules prescribes for certain disclosure in financial matters.
When the proceedings were next before the Court 25 August 2014 Orders were made requiring that the husband give disclosure and that the wife provide certain, identified documents which the husband sought, principally Centrelink records. The reference to the wife’s suggested incomplete disclosure without reference to the husband’s complete failure to give discovery to that date is curious.
The husband’s failure to give disclosure has continued throughout the proceedings. It would appear that the principal means of financial disclosure having been obtained has been through the issue of subpoena principally issued by the wife. One notable exception to this was a subpoena issued at the request of the husband and addressed to the Commissioner of Taxation. The Commissioner lodged an objection to the subpoena together with an Application in a Case and supporting Affidavit seeking that the subpoena be struck out and that Costs be ordered on an indemnity basis.
On 12 November 2015 the objection and Application in a Case lodged by the Commissioner of Taxation were dealt with and with the consequence that the subpoena issued by Mr Proctor was struck out and Mr Proctor ordered to pay the Commissioner of Taxation’s Costs fixed in the sum of $4245.30. Those Costs have not been paid and constitute a debt which I am satisfied should be taken into account in these proceedings.[23] A separate Judgment was delivered with respect to the subpoena issued.
[23] Whilst the debt is not referred to in any joint balance sheet tendered by the parties, the existence of the debt, arising as it does from an Order of this Court, is known to the Court. During his cross-examination Mr Proctor confirmed that the debt remains outstanding. Mr Proctor went so far as to suggest that the debt would be paid “over my dead body”.
The conduct of the proceedings is otherwise addressed in a discussion with respect to the Independent Children’s Lawyer hereafter.
Parties proposals
The position agitated by each party at hearing, or at least by the close of evidence, was somewhat different to that which had been sought in the Initiating Application and Response as filed.
In closing submissions, the Independent Children’s Lawyer tendered a Minute of Orders proposed (Exhibit ICL8). The effect of that Minute was to propose that Mr Proctor would have sole parental responsibility for both X and Y and that X and Y would live with their father and spend time with their mother, “in accordance with their wishes and the father will facilitate this time”.
Prior to submissions opening the Court had made clear that an Order for time to occur in accordance with the wishes of either child would not be considered. This position was advised in light of the evidence led over the four days of hearing and which made clear that even with the operation of specific Orders for time between the children and their mother that no time was occurring. Accordingly, an Order based upon the children’s wishes and a directive to the father to facilitate time was nonsense and it would achieve the same net effect as no Order for time or communication being made at all and without the Court exposing itself to ridicule through making Orders which would not be complied with either as to their terms or spirit.[24]
[24] For a discussion of same see Stevenson v Hughes [1993] FamCA 14.
At the conclusion of evidence Mr Proctor tendered a Minute which was suggested to effectively adopt the position advanced by the Independent Children’s Lawyer.[25] Mr Proctor elaborated further to indicate that:
a)He did not want the children “bound by legislation or Orders”;
b)The children should be free to move as they wish;
c)“The mother wants days and hours set. I won’t do that”;
d)“I am not happy with how the mother treats them. It is their decision whether they see her. I’ll have a big talk with them. They say that they don’t want to go. I tell them I don’t want to hear”;
e)“It will all be over in 3 to 4 years. That’s all there is to go [until the children attain their maturity]. I don’t care. I’m not fussed”.
[25] The Minute tendered by Mr Proctor proposed that the children spend time with their mother every weekend and for one half of each school holiday period and that the proceedings be adjourned on a part heard basis. It is somewhat ironic that such a proposal would be put by Mr Proctor when Orders to that effect had been in place since August 2014 and with no regular compliance, frequent complaint by Ms Proctor of non-compliance (including through two Applications for Contravention having been filed, although not proceeded with) and one of the few agreed facts in the case being that neither child is presently attending to spend any period of time with the mother.
With respect to property adjustment Mr Proctor submits that he sought to have a number of debts taken into account and paid from funds presently held in trust, which funds represent the remaining proceeds of sale of a property at Property C. After payment of these debts Mr Proctor proposed that any remaining balance be divided equally between the parties.[26]
[26] Mr Proctor had commenced by submitting that any remaining balance should be divided equally between the four children of the relationship and with neither parent receiving any funds. Mr Proctor was advised that such Orders were outside of the Court's jurisdiction and any reasonable exercise of discretion. Following this advice, the above proposal was advanced.
In submissions Ms Proctor, through her Counsel, tendered a Minute of Orders proposed (Exhibit A12). By this Minute Ms Proctor proposes, as regards parenting, that X and Y lived with her and that she have sole parental responsibility for them. Ms Proctor proposed that the proceedings be adjourned on a part heard basis and that pending further determination that the children spend no time and have no communication with their father for a period of six months and then commence supervised time with the father through a contact centre.
As regards property, Ms Proctor proposed that the entirety of funds held in trust would be received by her and that a superannuation splitting Order be made allocating to the wife from the husband’s various superannuation interests, a sum of $33,500.
There are a number of immediate difficulties with the superannuation splitting Orders proposed by Ms Proctor not the least of which are:
a)Whilst the Order is sought for a splitting Order in a sum certain there is no identified superannuation interest of Mr Proctor from which funds of such amount could be derived. In fact, in Mr Proctor's Financial Statement, the best evidence available with respect to Mr Proctor’s superannuation interests, suggests three policies in total with a combined value of approximately $14,000. In the balance sheet tendered in Ms Proctor’s case[27] these superannuation interests are suggested to have a total value of approximately $35,000;
b)The Orders are sought in a generic fashion so as to apply across a number of funds and in a fashion unlikely to be if not incapable of being approved by the fund; and
c)Procedural fairness has not been afforded to the Trustee of the fund/s.[28]
[27] Exhibit A3.
[28] As required by rule 24.07 of the Federal Circuit Court Rules 2001.
In closing submissions, it was made clear by Counsel for Ms Proctor that Ms Proctor sought a variety of adjustments in her favour as regards both contribution and section 75(2) adjustment. The plea for property relief made by Ms Proctor is prefaced upon her successfully obtaining leave to apply out of time pursuant to section 44(3) of the Act.
Mr Proctor did not address any submission to the question of leave to apply out of time.
Application of the rules of evidence
These are proceedings conducted both under Part VII and Part VIII or VIIIAB of the Family Law Act 1975. Thus, the application of the rules of evidence, both common law rules and as codified in the Evidence Act 1995 (Cth), must be considered.
In civil proceedings the applicable standard of proof is the civil standard and thus in arriving at any finding of fact the Court must be satisfied on the balance of probabilities[29] and subject to the “Briginshaw v Briginshaw test”.[30] That is a matter of some significance in light of that opined by Dixon J in Briginshaw v Briginshaw,[31] namely:
…but reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer.... In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
[29] Section 140 Evidence Act 1995.
[30] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[31] Ibid at 361–362.
The application of the Briginshaw v Briginshaw test requires that the Court, in determining satisfaction on the balance of probabilities, have regard to, “…the nature of the cause of action…the…subject-matter of the proceeding...and the gravity of the matters alleged”.[32] One might also have regard to the consequence of the finding to be made and the nature and quality of the evidence led and its reliability or probative value.
[32] Section 140(2) Evidence Act 1995(Cth).
To the extent that the proceedings are conducted under Part VIII or VIIIAB of the Act there is no issue as to the application of the rules of evidence.
To the extent that the proceedings are conducted under Part VII then the application of the rules of evidence is subject to section 69ZT of the Family Law Act 1975.
Section 69ZT(1) provides:
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
It is important to observe that section 69ZT(1) of the Act does not cause the non-application of all rules of evidence.[33] The section provides that certain portions of the Evidence Act 1995[34] do not apply. The remaining portions of the Evidence Act 1995 and a body of common law rules of evidence are not affected.
[33] As, for example, section 93 of the Children and Young Persons (Care and Protection) Act1998 (NSW) provides, namely, “The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts”.
[34] And common law rules of evidence dealing with the same subject matter and which might otherwise apply or be revived – section 69ZT(5) of the Act.
The application of the rules of evidence rendered non-applicable by section 69ZT(1) of the Act can be revived if the Court determines that some or all of those rules should apply to some or all of the issues in dispute. For this to occur the Court must be satisfied that there are “exceptional” circumstances.[35] Neither the parties or the Independent Children’s Lawyer made application for the rules of evidence rendered inapplicable by section 69ZT(1) to be revived and they have not been.
[35] As to what would constitute “exceptional” circumstances see Baker v The Queen [2004] HCA 45 and Segur v Segur [2010] FamCA 556, State Central Authority v Ustinov (No.4) [2008] FamCA 987 and Emmett & Emmett (No. 2) [2010] FamCA 57 and Khalil & Tahir-Ahmadi [2012] FamCAFC 68.
At the commencement of the trial and at several points during the trial the Court did make clear to the parties and the Independent Children’s Lawyer that:
a)Other than those portions of the Evidence Act 1995 rendered inoperative by section 69ZT(1) of the Act that the remainder of the rules of evidence, both common law and codified, would be applied;
b)All rules of evidence would be applied to any evidence relevant to the financial controversy between the parties; and
c)Section 69ZT(2) of the Act would be applied with the effect that evidence that was admitted solely as a consequence of section 69ZT(1) of the Act, (being evidence that would not otherwise be admissible) would be afforded little or no weight.
Issues of admissibility and weight are separate. Admissibility is determined by the rules of evidence and as legislatively directed. Issues of weight follow admission. That evidence is admitted, whether by application of legislative non-application of the rules of evidence or not, is preliminary to and separate from the weight to be afforded to that evidence.
Section 69ZT(2) recognises the separateness of admissibility and weight and provides:
The court may give such weight (if any) [emphasis added] as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
It is to be noted that section 69ZV of the Act includes a similar provision to section 69ZT(2) of the Act in that the Court may, by sub-section (3), “…give such weight (if any) as it thinks fit to evidence admitted…” regarding representations made by a child.
The weight to be given to evidence admitted solely as a consequence of section 69ZT(1) of the Act is eloquently addressed by Coleman J in Maluka& Maluka[36]:
As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is, in the Court’s view, likely to be mischievous, and not just for one party.[37]
[36] [2012] FamCA 373 at para 28.
[37] Whilst His Honour had determined by reference to section 69ZT(3) of the Act that there were exceptional circumstances, the comments made by His Honour are not confined to that circumstance and apply more broadly to issues of weight.
Also in Maluka & Maluka[38], Coleman J opined:
Perhaps for present purposes the short and simple answer is that particularly in the context of determining disputed issues of fact or belief with respect to domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence[39] any significant weight in the exercise of the Court’s fact-finding functions.
[38] Ibid at 36.
[39] Or, for that matter, evidence which would not, but for section 69ZT(1) of the Act, be admissible.
The weight to be attached to evidence that is admitted purely as a consequence of section 69ZT(1) of the Act, particularly when regard is had to the Briginshaw v Briginshaw test and the above comments, must be very little if any. That weight would be determined by reference to not only the above but also:
a)The availability of evidence in admissible form (and admissible without reliance upon section 69ZT(1) of the Act);
b)The application of the rules of evidence which continue to apply and which I will briefly consider. In particular, it is important to note that Division 12A does not exclude Part 3.11 of the Evidence Act 1995 dealing with discretionary and mandatory exclusions nor does it exclude a number of important common law rules of evidence.
Exclusion of evidence
Section 135 of the Evidence Act 1995 provides as general discretion to exclude evidence in the following terms:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Section 135 of the Evidence Act 1995 is relevant both as to the admission of evidence and the weight to be attached to evidence that is admitted especially when this has occurred as a consequence of the operation of section 69ZT(1) of the Act. The same factors which would be considered by the Court in determining to exclude evidence would be relevant to a consideration of weight. This is especially so when the evidence is unfairly prejudicial to a party.
Mr Proctor’s evidence is littered with assertion and opinion. Mr Proctor’s case is aptly addressed by a phrase commonly used by the late JR Knibbs as being “long on allegation, short on proof”.
Both Mr and Ms Proctor have raised allegations of violence perpetrated by the other. In Mr Proctor’s case this has largely been through the use of phrases such as “…she was very abusive and violent”. Such non-specific allegations are unfairly prejudicial. They are vague and largely meaningless. They are highly subjective opinions or conclusions. They cannot be challenged or explored in any satisfactory way during cross-examination. They cannot be responded to by Ms Proctor. They do not afford due process to Ms Proctor.
To the extent that such evidence is before the Court it cannot be afforded any weight.
Limitation of evidence
Section 136 of the Evidence Act 1995 provides a general discretion to limit use of evidence in the following terms:
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
Again, this provision is relevant both to imposing limits on the use of evidence and in determining the weight, if any, to be applied to evidence.
For similar reasons to those discussed above, relating to section 136 of the Evidence Act 1995, I am satisfied that the guidance provided by this provision would obviate against any weight being given to evidence that is admitted as a consequence of section 69ZT(1) of the Family Law Act 1975 which is unfairly prejudicial to a party.
This would especially apply to evidence that lacks specificity. Such evidence denies due process to a party who cannot challenge or answer the allegation or have due process by being forewarned of and knowing the case they are to answer or that of which they are accused.
I am concerned that much of the material relied upon by Mr Proctor (and, to a lesser extent Ms Proctor), falls into categories of:
a)Allegation unsupported by evidence;
b)Opinion or conclusion without such material as was taken into account in forming such opinions or conclusions being led in evidence;
c)Hearsay;
d)Unsworn testimony or Statutory Declarations by persons who are not called to give evidence;
e)Documents annexed to material or tendered but without any connection or nexus established between the document and any fact in issue.
Material within the above categories is unfairly prejudicial. It cannot be tested and, on occasions, cannot be established as relevant.[40] Such evidence is, as discussed, incapable of challenge or response.
[40] Sections 55 and 56 of the Evidence Act 1995 establishes that evidence is admissible if relevant and, ergo, evidence is not admissible when it is not relevant. Sections 55 and 56 are not affected by section 69ZT(1) of the Family Law Act 1975.
Whenever such issues arise in the evidence (which I will attempt to identify specifically but which would be clear from any consideration of Mr Proctor’s material) I propose to refuse to admit the evidence as its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial, misleading or confusing.
Alternatively, the material can be viewed as admitted pursuant to Division 12A but accorded absolutely no weight (and with the same consequence it will not be relied upon in arriving at any finding of fact or drawing any inference). The probative value of such evidence is so slight that on either of the above bases it could not be relied upon as its value would be entirely outweighed by its prejudice or potential to cause injustice.
No adjournment of proceedings has been sought by Mr Proctor to remedy the evidential defects of Mr Proctor’s case and notwithstanding that the approach which I propose to adopt and have so adopted was made clear prior to the evidence commencing.
Admission of business records and reliance thereupon
In this case reliance is placed upon a number of business records being documents from the Police, Department of Family and Community Services, doctors, hospitals, schools, banks and others.
The admission of the record is not, by and of itself, proof of the contents of the record.
Section 69 of the Evidence Act 1995 permits, as an exception to the hearsay rule, the admission of business records.[41] This is, in accordance with subsection (2), on the following basis:
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
[41] Section 69ZT(1) of the Family Law Act 1975 provides for the non-operation of Part 3.2 of the Evidence Act 1995 which includes section 69. Notwithstanding this, a consideration of the section and relevant matters regarding it is relevant to weight.
Whilst the contents of the document is not proven by the record having been made, the comments of the New South Wales Law Reform Commission in its Report, Evidence (Business Records) makes clear that “… the fact that the statements were to be used by the business provided a strong incentive for accuracy”.[42]
[42] Evidence (Business Records), NSWLRC 17, July 1973.
I accept that each of the authors of the records which have been admitted as business records (without objection), is independent of the parties, objective and has accurately recorded that which has come to their knowledge whether through direct observation or through perception.
To the extent that opinions are offered within any of the documents admitted (particularly as regards Police records and who have observed the interaction of the parties and of the parties with these children) I am assisted and guided by the comments of French CJ, Heydon and Bell JJ in their joint Judgment in Lithgow City Council v Jackson[43] such that the words “saw, heard or otherwise perceived” should include “to observe by one of the five senses of sight, hearing, smell, taste or touch” (as discussed in Stephen Odgers Uniform Evidence Law 10th edition at page 307) and further that:
The party adducing the evidence does not have to satisfy the Court that the person who made the representation had personal knowledge of the asserted fact. It will be enough that he or she “might reasonably be supposed” to have had such knowledge…
[43] [2011] HCA 36.
In Rickard Constructions Pty Ltd v Rickard Hails Merreti Pty Ltd[44] McDougal J stated at [19]:
In this context I think the words “or might reasonably be supposed to have had personal knowledge” indicate that the court is allowed to draw inferences not just from the form of the document but from the nature of the information contained in it…there is no need to identify the person who made the representation in the business record, the person with the pre-requisite knowledge [Lee v Minister for Immigration and Multicultural Affairs] 2002 [FCA 303 per Hely J at 22]; Australian Securities Investment Commission v Ridge [2005] 216 ALR 320 per Austin J at 197; Guest v Federal Commissioner of Taxation [207] FCA 193 per Heerey J at 25-31; Forbes Engineering (Asia) Pty Ltd v Forbes (no 4) [2009] FCA675 Collier J at 104.
[44] [2004] NSWSC 984.
I am satisfied that I can, should and will accept as accurate the contents of each of the documents that have been tendered as Exhibits and admitted as business records pursuant to section 69 of the Evidence Act 1995, particularly when that which is recorded within the document is a direct observation of the maker of the record.
I propose to place significant weight upon records that are a recording of direct observation by the note maker rather than opinion or recording what others have told the note maker. When records of that nature are produced and corroborative of the evidence of a party I will take the records as significant corroboration. When the records are at odds with the evidence of a party I, prefer the evidence contained within the records.
Browne & Dunn
Mr Proctor’s case is very much typified by an absence of information. It is also plagued by the absence of information that is available and would be relevant but is not called (which will be dealt with separately by reference to Jones & Dunkel[45] issues).
[45] (1959) 101 CLR 298.
Mr Proctor’s evidence is largely absent comment upon or response by him to the evidence of Ms Proctor.
Mr Proctor did not cross-examine Ms Proctor regarding the majority of her evidence and especially serious allegations or issues of significance raised in her evidence.
I am conscious that Mr Proctor is self-represented. However, he is a clearly intelligent and articulate man. The specific importance of cross-examination on important areas of controversy was raised with Mr Proctor on a number of occasions and including in the discharge of the Court’s Re F Litigant in Person Guidelines[46] obligations prior to the trial commencing.
[46] (2001) FLC 93-072.
Mr Proctor did not substantially refer to or challenge any evidence regarding events demonstrative of family violence as led in Ms Proctor’s case.
In light of the above one is reminded of the comments of Lord Herschell in Browne & Dunn:[47]
… I cannot help saying that there seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested to indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit… I have always understood that if you intend to impeach a witness you are abound, whilst he is in the box, to give him an opportunity of making explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
[47] (1893) 6 R 67 (HL).
The allegations of violence and the specific particulars of each allegation as raised in Ms Proctor’s evidence were not canvassed with Ms Proctor at all in either Mr Proctor's Affidavit[48] evidence or by cross-examination.
[48] It must be noted that Mr Proctor relied at trial upon an Affidavit sworn or Affirmed by him 4 June, 2014. No further material was filed notwithstanding both opportunity and trial directions to do so.
To the above end I am particularly appreciative of the comments of Wells J in Reid v Kerr[49] which I consider the most apt and appropriate description of the difficulty that arises in this case and in the interpretation and application of the rule in Browne & Dunn as follows:
…a judge… is entitled to have presented to him... issues of fact that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne & Dunn has not been observed, have not been brought into direct opposition, and serenely past one another like two trains in the night.
[49] (1974) 9 SASR 367 at 373-4.
In reliance upon the above passages (and other matters such as credit and corroboration or lack thereof) I am satisfied that wherever there is conflict between the evidence of Ms Proctor and Mr Proctor, particularly but not solely confined to issues of family violence and the particulars thereof, that the evidence of Ms Proctor should be accepted.
Jones & Dunkel
Significant Jones & Dunkel[50] issues arise in this case.
[50] (1959) 101 CLR 298.
As is clear from the above discussion Mr Proctor has presented minimal evidence in his case as regards issues important to the determination of this controversy.
The failure by Mr Proctor to lead evidence, for example, with respect to various debts alleged by him as outstanding and due and payable, is somewhat fatal to his cause.
Mr Proctor did not provide any explanation as to why this evidence had not been called other than to suggest at different points in the hearing:
a)He had made “mistakes”. Some of these were the subject of oral evidence in chief “correcting” portions of his Affidavit;
b)That the proceedings were a form of “cultural imperialism” and that to avoid such “cultural imperialism” he would not lead evidence or respond to certain evidence or questions.[51] I will deal with this issue separately.
[51] This “complaint” did not arise until the resumption of the trial on a part heard basis (days 3 and 4).
I note and receive considerable assistance from the joint Judgment of Gibbs ACJ, Stephen, Mason and Aitken JJ in the High Court of Australia’s decision of Brandi v Mingot[52] and as quoted with approval by Campbell J in Manly Council v Burn and Another[53] as follows:
.. if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party that failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
[52] (1976) 12 ALR 551 at pages 559-560.
[53] (2004) NSWCA123 at 51.
I am satisfied that these principles should apply to many aspects of Mr Proctor’s case.
To the extent that there is an absence of evidence regarding issues of importance I am satisfied that an inference, adverse to Mr Proctor, should be drawn.
As regards the absence of other relevant witnesses, (such as, for instance, those to whom Mr Proctor alleges he owes money), I am satisfied that this would not only give rise to a negative inference as to the support to be provided by their evidence to Mr Proctor’s cause but also the fact that their evidence might cause harm to Mr Proctor’s case.
The Jones & Dunkel inferences that arise would be sufficient and, I am satisfied, should be sufficient to cause me to reject Mr Proctor’s evidence whenever it is in conflict with that of Ms Proctor’s or the other available objective evidence introduced through business records.
Expert Evidence
Heydon JA’s Judgment in Makita (Australia) Pty ltd & Sprowles[54] makes clear, to paraphrase His Honour’s reasoning, that an expert is required to identify the factual matters relied upon by them in formulating and expressing their opinion (such opinion to be based on specialised knowledge) and for those matters to be proven as fact for the opinion to attract weight and/or be relied upon.
[54] (2001) 52 NSWLR 705.
Such reasoning has been reaffirmed by the High Court of Australia in Dasreef Pty Ltd v Hawchar.[55]
[55] (2011) 277 ALR 611.
The expert evidence that is before the Court (the Report of Ms Morgan) has involved interviews with the two adult children of the parties. One of those adult children, Mr R, has not been called. Any material within the Report regarding the interview with Mr R or relying upon that disclosed by him will be disregarded.
The adult child Ms P was called and has given evidence. I am not satisfied that I can accept Ms P as a witness of truth and, as a consequence, any material within the Report regarding the interview with Ms P or relying upon that disclosed by her will be disregarded or approached with real caution.
This is particularly relevant in the context of this case as the Report Writer prefaces her recommendations upon the position that “…it is considered more likely that Ms Proctor did physically, emotionally and psychologically abuse all four of her children….”[56] Whilst this view would appear to have been formed from a consideration of that disclosed in interview and a consideration of material produced on subpoena it is noteworthy that:
a)The Report Writer has proceeded to draw concluded views of the evidence, notwithstanding the denials of Ms Proctor and, as is acknowledged by the Report Writer, the material was, at the time of interviews, untested;
b)Significant reliance is placed upon statements by persons who have not given evidence or, if they have, have not given credible evidence;
c)Reliance upon the accuracy of statements by X is demonstrated, notwithstanding the concerns raised by the Report Writer that X was strongly influenced by his father and may have been, as alleged by Ms Proctor, “brainwashed”;
d)No allegation of harm to the youngest child Y was raised in the evidence or by that child in interview with the Report Writer. Indeed, Y is reported as having “…said that her mother did not hit, yell or swear at her”.
[56] Paragraph 94 page 38.
I will discuss the Report and the Report Writer’s evidence in more detail shortly. However, substantial issues with the Report and its recommendations arise as a consequence of reliance by the Report Writer upon “facts” that have not been established by the evidence or which are at odds with the evidence before the Court and findings that will be made by the Court.
The Independent Children’s Lawyer
I feel compelled to make some comment with respect to the Independent Children’s Lawyer.
On the second occasion that these proceedings came before the Court (25 August 2014) an Order was made for the appointment of an Independent Children’s Lawyer. On the same date a number of Orders were made including:
a)An Order commissioning the preparation of the Family Report; and
b)Interim parenting Orders, which provided for X and Y to spend time with their mother each weekend from Friday until the following Monday together with one half of each short New South Wales school holiday period. The Orders provided that the children would spend their remaining time with their father.
On 27 October 2014 the Independent Children’s Lawyer filed a Notice of Address for Service. In the intervening period (14 October 2014) the matter had been before the Court and the Independent Children’s Lawyer had sought adjournment on the basis that:
a)The Independent Children’s Lawyer had not been provided with the documents filed by the parties;
b)Enquiries were to be made as to the need for a Part 15 Report and, if considered necessary, enquiries would need to be made as to funding and an appropriate appointment.
On 14 October 2014 it was noted that compliance with the parenting Orders made only some weeks earlier, on 25 August 2014, had broken down.
Following adjournment of the proceedings, to enable the above matters to be attended to, a request was made by the parties and the Independent Children’s Lawyer for administrative adjournment. A brief adjournment was granted.
The proceedings next came before the Court 16 December 2014. The matter was, on that date, listed for interim hearing. The Independent Children’s Lawyer did not appear, although a junior solicitor from the office of the Independent Children’s Lawyer with little knowledge of the matter and not on the Panel of Legal Aid Commission approved Independent Children’s Lawyers appeared.
At the appearance 16 December 2014, some four months after the Order for appointment of an Independent Children’s Lawyer had been made, it was disclosed that the Independent Children’s Lawyer had not met with the children. An Order was made in the following terms, “The Independent Children’s Lawyer shall forthwith and no later than 23 January 2015, meet with the children”.
At all times since these proceedings were commenced the children have been of an age whereby it is difficult to comprehend how or why their views might not be relevant.[57] The children, at that time, were aged 12 and 10 years of age respectively. The children were suggested by both parents to be expressing “strong views”. Indeed, those suggested views and issues relating to or suggested to impact upon those views and the weight that might ultimately be given to them was made clear in a Child Dispute Conference Memo that had been produced 25 August 2014 and forwarded with the Order appointing the Independent Children’s Lawyer (the Order for appointment of the Independent Children’s Lawyer specifically referring to the Memo as a basis for appointment).
[57] A separate Judgment was delivered following the interim hearing 16 December, 2014 which spoke to that issue.
Without, for one moment, wishing to become embroiled in controversy arising from Gardner’s theory of “Parental Alienation” as against Johnson’s discourse on Alignment, the terminology arising from those authors, “alienation” and “alignment”, has been used by the parties and the Independent Children’s Lawyer (and, for that matter, the Family Report Writer) throughout the proceedings. Put simply:
a)Mr Proctor’s case is that the children reject their mother whom he alleges has perpetrated abuse upon and towards them;[58] and
b)Ms Proctor’s case is that her relationship with all four children has been actively undermined by Mr Proctor who has embarked upon a conscious and deliberate campaign of alienation.
[58] Those allegations will be discussed further in a consideration of the evidence. However, it is helpful to observe from the outset that Mr Proctor does not allege that he has directly witnessed physical abuse of the children.
I make clear that beyond a reference to the terminology espoused by Gardner and Johnson, no regard has been had to any literature or research produced by either. The terminology is used as it is the terminology which the parties themselves have used and I am aware of the origin of such terms.
I have been at pains to clarify with the parties and each of them (and, indeed, with the Family Consultant during her cross-examination) that such terms have not been used in a “loaded” way intended to import and impermissibly introduce such literature. I have been conscious to ensure that when the parties, the Independent Children’s Lawyer or the Family Consultant have used that terminology that it has been without reference to or reliance upon social science research not properly introduced into evidence. No such research is before the Court and the only social science evidence before the Court is that of the Family Report Writer absent such considerations.
Whilst these parties do not own joint property and thus have no need to release their respective equity therefrom, I am all the more satisfied that it is just and equitable to proceed to hear the plea for relief of Ms Proctor and to determine what adjustment, if any, should be made of the parties respective interests in property.
I must also, as the High Court reaffirmed in Stanford v Stanford, commence by ascertaining the present legal and equitable interests in property of these parties. This is set out above in a discussion of the evidence.
The total pool of property that is available for division is comprised as set out above and with a total value of $254,847.04.
I propose to have regard to only two liabilities being the Centrelink debt and the debt owed by Mr Proctor to the Australian Taxation Office pursuant to the Order for Costs made by this Court. The latter is considered for the purpose of securing its payment rather than to apportion liability between the parties. It is clearly the sole responsibility of Mr Proctor.
Contribution
I must have regard to each of the categories or classes of contribution as described by section 79(4) of the Act.
As I have a ready indicated, I accept the evidence of Ms Proctor wherever there is variance between the evidence of these parties. I have found Ms Proctor’s evidence to be more clear, plausible, internally consistent and credible.
On the basis of an acceptance of Ms Proctor’s evidence, I am invited by Ms Proctor's Counsel to find that Ms Proctor’s contribution has been in the order of 50 to 60%. This reflects:
a)Ms Proctor’s substantial contributions as a homemaker and parent throughout the relationship. Notwithstanding the criticism as raised by Mr Proctor of Ms Proctor’s home keeping and parenting what is absent in Mr Proctor’s evidence is any realistic suggestion as to who performed such duties if not Ms Proctor. Mr Proctor somewhat grandiosely, indeed in absolute terms, suggested that he had not only worked full-time for a significant portion of the relationship but had also undertaken the majority if not all of the household duties. Mr Proctor made various “corrections” to his evidence at the commencement of his case and appropriately so as the allegations he raised could not have been maintained on the evidence available. I accept that Ms Proctor’s contribution as homemaker and parent has outweighed that of Mr Proctor;
b)Ms Proctor has made substantial contributions as a wage earner as has Mr Proctor. Ms Proctor has been engaged in various employments during the relationship, albeit that when both parties were working Mr Proctor’s income was generally greater than Ms Proctor’s. I accept, however, that Ms Proctor applied all income that she had at any time, whether from wages and salary or Centrelink entitlements, to the household and to the benefit of the family;
c)Ms Proctor asserts a Kennon & Kennon[251] argument on the basis that her contributions were, as a consequence of Mr Proctor’s behaviour towards her, “more onerous” I accept that this is so. The findings that have been made by me regarding family violence suggests that Ms Proctor has, at times, been significantly disadvantaged in her enjoyment of life and her capacity to engage in employment or operate within the home. Ms Proctor’s medical records lend some support to this. I do not propose to repeat Ms Proctor’s evidence regarding these issues. It is set out in full in her Affidavit material;
d)Ms Proctor has contributed non-financially to the acquisition, maintenance and improvement of assets. Mr Proctor concedes that Ms Proctor made payments towards the mortgage encumbering the various homes owned by these parties at different times. She has also met other expenses, liabilities, purchased food and generally contributed to the running of the household. As indicated above, I am satisfied that all income earnt by Ms Proctor throughout the relationship has been applied towards the benefit of these parties and the family unit.
[251] (1997) FLC 92-757.
I am satisfied that the contributions of these parties should be assessed as relatively equal though not necessarily equal. This would not be inconsistent with the position advanced by Mr Proctor. More importantly, however, I am satisfied that a relative equality of contribution would, for these parties, after a lengthy relationship during which each has at different times, worked hard whether as a homemaker and parent or income earner, be just and equitable.
I am satisfied that having regard to the factors highlighted above that some slight adjustment should be made in Ms Proctor’s favour. I am satisfied that the significant adjustment Ms Proctor seeks would not be just and equitable. The evidence that is led as regards contribution is far from substantial and would not support such discounting of Mr Proctor’s efforts.
A modest adjustment of 0-5% in Ms Proctor’s favour is warranted. I am satisfied and I propose to make an adjustment at the mid-point of 2.5% and such that the contributions of the parties shall be assessed, respectively, as 52.5% in Ms Proctor’s favour and 47.5% in Mr Proctor’s favour.
Lest I am wrong with respect to the above and certainly as regards any adjustment for section 75(2) to which I will now turn, I make clear that a finding within that range, including at the maximum of that range (55%) would be appropriate.
Section 75(2) adjustment
Ms Proctor proposes an adjustment in her favour, by reference to section 75(2) of the Act. Ms Proctor proposes that an adjustment in her favour pursuant to section 75(2) would be made of not less than 10%.
In considering each of the factors under section 75(2) of the Act the following is apparent:
a)Mr Proctor is considerably older than Ms Proctor. However, Mr Proctor’s earning capacity is at least equal to that of Ms Proctor if not substantially greater;
b)Mr Proctor is presently employed. Each of his daughters, adult and minor, suggest that it is so, notwithstanding Mr Proctor’s assertion that he is not engaged in any employment and is entirely dependent upon Centrelink benefits. Mr Proctor has produced no evidence that that would allow or persuade me to accept his evidence;
c)I am completely unaware of the financial circumstances of Mr Proctor. Mr Proctor has been less than truthful as to his current employment and has advanced nothing as to those employment arrangements, income or expenses of conducting the business which I accept he operates. Mr Proctor has produced nothing with respect to his present financial position including the receipt and application by him of monies from the sale of either of the two parcels of real estate;
d)Both parties are able to obtain paid employment and neither, as a consequence of age or ill health, is precluded from participation in paid employment;
e)Ms Proctor does not possess significant employment skills and this has significant limitation upon her future earning capacity. Ms Proctor also, as a consequence of the Orders that I propose to make, will assume the full-time care of one of the two minor children of the relationship. Ms Proctor does not have assistance within her household to care for the children in the same fashion as Mr Proctor who has delegated the majority of care for the minor children within his home to the adult child Ms P;
f)Mr Proctor’s earning capacity, if not income, is significantly greater than Ms Proctor’s. Mr Proctor’s income earning capacity has been enhanced as a consequence of the relationship particularly his completion of tertiary qualification during which study Ms Proctor was solely responsible for the financial support of the household and of Mr Proctor. Ms Proctor has thus contributed to that qualification which Mr Proctor will take from the relationship and which has value to Mr Proctor;
g)Whilst there is no plea by Ms Proctor for spouse maintenance (and on the evidence available it would be difficult if not impossible for an Order to be appropriately fashioned) Ms Proctor will, as a consequence of Mr Proctor retaining his income and earning capacity (including his enhanced earning capacity) forego the benefit of any future income Mr Proctor might earn;
h)To date Mr Proctor has had the benefit of substantial funds over and above those which Ms Proctor has received. Whilst the majority of funds from the sale of the home had been held on trust Mr Proctor has received cash funds in excess of $32,000. Ms Proctor has received cash funds of $15,000;
i)Neither party asks the Court to make any adjustment with respect to premature distribution of funds nor to “add back” any amount of expended funds, particularly when expended on legal fees such as a NHC & RCH[252] adjustment. Since separation Mr Proctor has thus been in a superior financial position both as to capital and income;
[252] [2004] FamCA 633.
j)Each party will, as a consequence of the Orders that I propose to make, have the full-time care of a child of the relationship under the age of 18 years;
k)Neither party has any commitment or legal duty to support any person other than their minor children and themselves;
l)Neither party is likely to make any contribution to the maintenance of the other party or the child in their care;
m)Ms Proctor deposes to being employed in (occupation omitted) on a casual basis. Her income is variable and depended upon work hours being offered. She receives some modest level of Centrelink assistance by way of family tax benefit. Mr Proctor deposes to being unemployed and a full-time carer for the two minor children of the relationship. It may well be that Mr Proctor receives benefits that he is not entitled to as he would appear to be in employment either a substantial part-time or on a full-time basis. As a consequence of the parenting Orders that I propose to make any Centrelink benefit that Mr Proctor currently receives will likely reduce as only one child will be residing in his care;
n)To enable each of the parties to maintain a standard of living that is reasonable they will each require access to capital funds. Neither would be in a position to purchase accommodation each will be depended upon rental accommodation;[253]
[253] Although, that is said in the knowledge that little if anything is accurately known of Mr Proctor’s present financial position due to his lack of candour and failure to give proper disclosure. Mr Proctor was not even able to produce a current statement for any account he operates such as the account to which his Centrelink benefits are paid.
o)Mr Proctor has the two adult children of the relationship residing with him. Ms P provides substantial assistance in caring for the children, in fact caring for them more substantially than does Mr Proctor, as well as through financial assistance of contribution to household expenses. It is unclear what contribution the adult child Mr R makes if any;
p)Ms Proctor does not have any other person living within her home to assist in either child care or household expenses. Thus, her expense base will be somewhat higher than Mr Proctor’s. This has certainly impacted upon the standard of accommodation that she can enjoy and will likely continue to do so in the future;
q)Ms Proctor will need to expend a significant portion (and unquantified amount) of that which she receives by way of settlement in paying her lawyers. That is not to begrudge payment to her lawyers but simply to acknowledge that the funds that Ms Proctor received will not be entirely hers. There will be some form of legal charge to secure payment. Mr Proctor is not so burdened;
r)In all probability Ms Proctor’s standard of living, since the physical separation of these parties, has been inferior to Mr Proctor’s. In all probability Ms Proctor’s standard of living will continue to be inferior to Mr Proctor’s;
s)Whilst the payment of maintenance is not under consideration, I am conscious, as I have found above, that Ms Proctor has contributed to the income and earning capacity of Mr Proctor by support to him through the completion of his tertiary qualification which, in due course if not already, he will be able to use to good advantage to earn income. He will retain the “value” of that qualification;
t)The Orders that I propose to make will, by and large, have no impact upon creditors. Of the debts that are alleged by Mr Proctor, I am satisfied that only one would appropriately require address as a debt of the relationship. I propose also to make Orders which pay, as a matter of priority, the Costs Order imposed upon Mr Proctor in favour of the Australian Taxation Office. This is particularly so as Mr Proctor has been clear in his evidence that he demonstrates contumelious disregard for his obligations with respect to that Order;
u)Requiring payment of each of the above debts, in the case of Centrelink prior to distribution between the parties and, in the case of the Australian Taxation Office, prior to any distribution to Mr Proctor, is the best that can be achieved in protecting creditors;
v)The relationship between these parties has been regrettably long. I describe it as “regrettable” as it may have been better for these children if these parties had separated and remained apart at a very early stage in their lives. The disadvantage that has been inflicted upon the parties and these children as a consequence of this relationship is substantial. It is difficult, however, to quantify such damage in any fashion for the purpose of this adjustment. However, the length of the relationship between these parties is such that the earning capacity of neither has been adversely affected. Indeed, to some extent the earning capacity of each has been enhanced;
w)Each party will continue in a role as a parent. Ms Proctor will take on that role for the first time since these parties physically separated. Mr Proctor will continue to have some role in the parenting of X, although I am conscious that the majority of this care will devolve to Ms P;
x)Neither party is cohabiting with any other in a de facto or marriage relationship. Mr Proctor is cohabiting with the two elder children of the relationship who provide some financial assistance and lessening of financial burden;
y)Neither parent presently pays nor is it likely that either parent will in the future pay any amount to the other by way of Child Support;
z)As regards other factors, I am conscious that some adjustment should be made in favour of Ms Proctor. Mr Proctor has failed to give financial disclosure in any meaningful way. Clearly, Mr Proctor is in employment and has income that has not been disclosed. That income cannot be quantified. Mr Proctor has produced no documents regarding the sale of the Property M property and whatever might have been received from that sale cannot, again, be quantified or addressed. In the absence of proper disclosure by Mr Proctor and having regard to the adverse findings of credit that I have made against him, I cannot discount that he may have other assets, resources or income available.
Weighing all of the above factors together, I am satisfied that the adjustment of 10% sought by Ms Proctor is warranted.
Again, lest I am wrong in this, I am satisfied that any reduction in such adjustment would be augmented by the potentially greater finding of contribution discussed above.
Conclusion re property orders
On the basis of a 10% adjustment pursuant to section 75(2) of the Act and added to the findings of contribution that I have made then the total division of property as between Mr and Ms Proctor would be 37.5% in favour of Mr Proctor and 62.5% in favour of Ms Proctor.
As the nett pool has a value of $254,847.04. Ms Proctor would need to receive total assets with a value of $159,279.40.
Ms Proctor presently holds or has had the benefit of property totalling $27,500 comprising:
a)Cash received from the sale of the home $15,000
b)Jewellery $2,000
c)Car $4,500
d)Shares $3,000
e)Superannuation $3,000
Total: $27,500
On this basis Ms Proctor would need to receive, from the funds invested in trust ($144,000) an amount of $131,779.40.
Whilst it is not mathematically precise, I would propose that the Centrelink debt be paid before the distribution of funds as between the parties and subject to the caveats identified above.
An Order will be made requiring Mr Proctor to give authority to Ms Proctor’s solicitors to enable them to ascertain from Centrelink or (omitted) advice as to whether the debt, as it is presently disclosed, ($3,091.88 and possibly with further accrued interest) has been paid or not.
As Mr Proctor has not seen fit to produce any more up-to-date detail this enquiry will be necessary. However, as no up-to-date payout figure has been provided, I would propose to cap the joint liability of the parties at the amount that Mr Proctor has disclosed, namely, $3091.88.
To ensure that Mr Proctor tends to that which is required of him to enable inquiry to be made, I propose to Order that in the absence of such written authority being provided by Mr Proctor (direct to Ms Proctor’s attorneys) within seven days, that the liability will default to being Mr Proctor’s sole liability.
Provided that the authority is provided then Ms Proctor’s solicitors will, in accordance with Ms Proctor’s obligation to provide instructions to that effect, be required to ascertain the present payout of the debt. The parties would be jointly liable for a maximum payment in the sum of $3,091.88. If the debt has accrued further interest and increased, Mr Proctor will be liable for this amount, although the solicitors for Ms Proctor shall be authorised to pay it in full from both the joint funds and from any remaining distribution to Mr Proctor.
Once the above issue has been addressed the remaining balance shall be divided as to $131,779.42 to Ms Proctor and as to the balance to Mr Proctor subject to deduction and payment from Mr Proctor’s share of settlement proceeds of both:
a)Any remaining sum necessary to ensure that the Centrelink debt is discharged in full; and
b)Payment to the Australian Taxation Office of the debt owed to them as a consequence of the Costs Order made 12 November 2015, being a sum of $4,245.30.
I have provided for the distribution of funds in fixed, dollar amounts rather than percentages as the amount that is held in trust is a sum certain upon which interest has not accrued. Thus, there is no injustice to either party of such fixed some apportionment.
Finally, and lest there be any controversy as to the ongoing existence of a “fourth step”, I declare that I am satisfied that Orders for the division of property as above described are appropriate, just and equitable. They will make a modest adjustment for the slightly greater contribution that I have assessed Ms Proctor as having made throughout this lengthy relationship and will make an adjustment, as best as can be ascertained on the available evidence, particularly noting a paucity of evidence in the case of Mr Proctor and a near complete lack of disclosure by him (causing significant gaps in the evidence and significant additional cost for Ms Proctor in issuing subpoenas) for relevant section 75(2) adjustments.
For the above reasons Orders are made as follows (see Orders).
I certify that the preceding one thousand and nineteen (1019) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 23 March 2016
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