RALPH & MEDLOCK
[2014] FamCA 191
FAMILY COURT OF AUSTRALIA
| RALPH & MEDLOCK | [2014] FamCA 191 |
| FAMILY LAW – CHILDREN – where the child the subject of the proceedings has very significant disabilities – where the father has spent almost no time with the child in the past 6 years – whether a reintroduction of time with the father is in the child’s best interest – where the expert evidence is unanimous in stating that the child needs stability and predictability – where the child experienced significant emotional distress and behavioural disruptions subsequent to an unplanned visit by the father to the child’s school – where the father and his new wife have adverse perceptions of the mother’s parenting which are not supported by the evidence – where it is not in the child’s best interests to reintroduce time with the father – orders made that the child live with the mother, the mother have sole parental responsibility for the child and there be no order for time between the child and the father. FAMILY LAW – PROPERTY – where, by virtue of their separation, the common use of property erstwhile enjoyed by the parties ceased – where it is, then, just and equitable to make orders effecting a property settlement between the parties – where, for a significant portion of their relationship, the parties lived in properties owned by the wife’s parents – where the parties received in excess of $280,000 from the wife’s parents – where a portion of that money enabled the parties to purchase the former matrimonial home which constitutes a significant portion of the assets available for distribution – where the funds received from the wife’s parents to purchase the former matrimonial home were secured by way of mortgage over that property – where the husband contends that debt ought be excluded from the “pool” on the basis that it is unlikely to be called upon by the wife’s parents – whether that debt should be excluded – where, in circumstances where the debt is secured by a mortgage, it should not be excluded – where the wife sought to have the remaining funds received from her parents included as liabilities in the “pool” – where the husband argued, inter alia, that the loans were unlikely to be called upon – whether the loans should be included in the “pool” – where the evidence, including oral evidence of the wife’s father, indicated the loans were not likely to be called upon – where the loans were excluded from the “pool” –where the wife has had the sole responsibility, including the primary financial responsibility, for the parties’ child who has significant disabilities for the past six years – where the parties’ contributions assessed at 75:25 per cent in favour of the wife – where the wife has a greater earning capacity than the husband – where the father has re-partnered – where the wife has not re-partnered – where the wife will have as a result of the parenting orders, sole parental responsibility, including primary financial responsibility, for the parties’ child, who has significant disabilities – where a further adjustment to the wife of 15 per cent is just and equitable in the circumstances – orders made effecting a distribution between the parties in the proportion 90:10 per cent in favour of the wife. |
| Ascot Investments Pty Ltd v Harper & Anor (1981)148 CLR 337 Bevan and Bevan [2013] FamCAFC 116 Biltoft and Biltoft (1995) FLC 92-614 Coghlan and Coghlan (2005) FLC 93-220 DJM & JLM [1998] FamCA 97 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39] Omacini & Omacini (2005) FLC 93-218 Watson & Ling (2013) 49 Fam LR 303 |
| Child Support (Registration and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth) Limitation of Actions Act 1974 (Qld) |
| APPLICANT: | Mr Ralph |
| RESPONDENT: | Ms Medlock |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox |
| FILE NUMBER: | BRC | 6966 | of | 2009 |
| DATE DELIVERED: | 28 March 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 10, 11, 13, 14 &17 March 2014 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Stevenson A Ace Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | Holloway Jenkins |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Hodges |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitors |
Orders
Parenting
That all previous parenting orders are discharged.
That the child, K born … 1999, live with the mother who shall have sole parental responsibility for him.
That the mother is permitted to take the said child from the Commonwealth of Australia for holidays.
That the child shall not spend time with or communicate with the father other than as agreed in writing between the mother and the father.
That the father shall not harass, intimidate or threaten the mother but may communicate with her in writing from time to time with a view to obtaining from her information and photographs about the child, which information and photographs should not be unreasonably withheld by the mother.
That the Independent Children’s Lawyer is discharged.
Property
That within thirty (30) days of the date of these Orders the wife pay to the husband the sum of $12,209.11 and payment of this amount by the wife to the Child Support Agency towards reduction of any outstanding registered maintenance liability of the husband is sufficient discharge of the wife’s obligation to pay the husband such amount pursuant to these Orders.
That within thirty (30) days of the date of these Orders the husband shall transfer all of his right, title and interest in the real property situated at I Street, Suburb B in the State of Queensland being Lot … on RP … County of … Parish of … Title Reference No … to the wife, in return for which, the wife shall cause the husband to be released and discharged from any and all liability pursuant to mortgage no … registered on the title to the said property.
That should the wife be unable to effect the release and discharge of the husband from any and all liability pursuant to mortgage no … registered on the title to the said property then the property shall be sold within four (4) calendar months of the date of these Orders with the said mortgage to be discharged from the sale proceeds with the wife to retain all net proceeds of sale.
That the husband shall retain as his property absolutely his Sport L equipment and any other personal property in his possession and he shall also retain as his solely all of his interest in the G Super superannuation fund.
That, save as otherwise provided in these Orders, the wife shall retain as her property absolutely all personal property in her possession, including her motor car, and the real property at I Street, Suburb B upon compliance with her obligations pursuant to paragraphs (7) and (8) of these Orders.
That the wife shall also retain as hers solely all of her interest in the J Super superannuation fund.
That the wife shall indemnify the husband and keep him indemnified against any and all liability to her father and/or her mother, howsoever such liability has arisen.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ralph & Medlock has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 6966 of 2009
| Mr Ralph |
Applicant
And
| Ms Medlock |
Respondent
REASONS FOR JUDGMENT
Mr Ralph and Ms Medlock were high school sweethearts in Fiji, their country of origin. In 1989, about ten years after commencing their relationship, they married in Fiji. Their only child, K, (“the child”) was born in 1999 and the family migrated to Australia in December 2003.
In July 2008, the parties separated when the husband left the home the family occupied in the western suburbs of Brisbane. In the nearly six years that have passed since that time, the child has spent no more than an hour or so with his father and the parties have been locked in significant conflict about parenting and financial matters. Indeed, they have been in litigation in the family law courts about these matters since late 2009 without any final resolution.
In a trial before me that took place from 10 March to 17 March 2014, I heard the husband’s application for parenting orders and for property adjustment orders. He seeks orders that provide for the child to spend regular time with him and that require the wife to pay him a lump sum of money in return for him transferring his interest in the former family home to her.
The parenting orders proceedings are particularly complicated by the fact that the 14 year old boy has moderate to severe autism. Indeed, both the wife and the Independent Children’s Lawyer contend that the child’s best interests will be served by dismissing the husband’s application for orders that the child spends some regular time with him. Both submit that the child’s best interests will be met by the child not spending any time with his father at all.
In respect of the property adjustment proceedings, the matter is complicated by the existence of debts owed by the wife solely, and by the wife and the husband jointly to the wife’s parents that would, if taken into account, all but wipe out the equity in the parties’ jointly owned former family home, leaving them with little net property interests at all to consider in respect of any adjustment between the parties.
Some more relevant history
Although the parties were in a relationship together from about 1980, they actually only began to live together when they married in December 1989. The wife came from a relatively wealthy family by Fijian standards. She had studied in a professional field and had obtained a position teaching in that field in Fiji.
The husband was adopted shortly after his birth by a couple living in Fiji. As an adult in Fiji, he was working in a sales position and dedicatedly pursuing Sport L, in which he competed at an international level.
Neither of them had any notable property interests when they married. The husband was renting an apartment at the time and the wife moved in with him there.
About one year into their marriage, the couple moved into a house that was owned by the wife’s parents. They lived there rent free for about three years. In 1994, the wife’s parents migrated to Australia to live and the husband and the wife then moved into the wife’s parents’ former home in Fiji. Again, they lived there for the next ten years rent free. The wife’s parents paid for the cost of the utilities and amenities provided to both the properties that the parties occupied in all of those years in Fiji. This included paying for a gardener/handyman hired to look after the properties. The wife’s parents also provided the wife with a fully maintained motor car for her private use. The parties seemed to have had a comfortable standard of living in those circumstances, and the husband was able to pursue his elite sporting interest, with the practical and financial support of the wife and her parents.
The wife earned a marginally higher income than the husband did in all their years of employment during their marriage, both in Fiji and in Australia.
After their child was born in Fiji in 1999, each parent continued to work full-time whilst help in the form of a full-time nanny was hired to assist in caring for the boy. The family also had other paid domestic assistance around the home.
At the trial, it was part of the wife’s case that she owed her father substantial amounts of money. In evidence in particular, were copies of two documents reflecting loans from the wife’s father. The documents said to evidence the loans bore dates that were in the years the couple were still living in Fiji.
The first loan was asserted to be evidenced by a written agreement between the wife and her father of 15 December 1994. A copy of that one page written agreement was exhibited by the husband to one of his affidavits. It appears to bear a Fijian stamp showing a date of 9 February 1995 reflecting payment of stamp duty on it. It details a loan of $61,000 Fijian dollars from the wife’s father to the wife. It is recorded as being interest free, payable “until demand by annual payments of not less than $6,000” with the first such payment to be made on 1 February 1995 and with the final payment to be $7,000.
At the trial, there was agreement between the parties that $61,000 Fijian is the equivalent of $36,310 Australian dollars at current exchange rates.
Despite the wording of the document that provided for annual instalments to be repaid to the wife’s father, the wife’s case is that no repayments have ever been made on that loan. Her father supports her on that.
In their oral evidence at the trial, given under cross-examination, both the wife and her father asserted that the total amount of $61,000 Fijian dollars had actually been borrowed by the wife from her father in various amounts from time to time in the period leading up to late 1994, as she and the husband needed more money to fund their lifestyle. They both asserted that eventually the wife’s father told the wife that he required a document to be executed whereby she acknowledged that she was indebted to him for that amount and that he required it to be repaid. The wife asserted that the husband knew she was getting money from her father and that her father required it to be repaid. The husband’s evidence is that he did not even know of any of this until after these proceedings were underway.
The second loan was asserted to be evidenced by another one page written agreement between the wife and her father, a copy of which the husband also exhibited to one of his affidavits. It is dated 22 July 2002 and bears a Queensland stamp showing a date of 24 July 2002 reflecting payment of stamp duty on it. It details a loan of $100,000 Australian dollars repayable on demand and interest free.
Again, the oral evidence of the wife and her father given under cross-examination at the trial was that the total sum of $100,000 was the amount advanced to the wife by her father in various amounts from time to time between the time the first loan was documented and the time of the second loan being documented. Again, it was documented, according to them, at the insistence of the wife’s father so that there was a record of the requirement for repayment.
As I have observed already, the husband denies any knowledge of the loans or any knowledge of receipt and expenditure of any money pursuant to the loans, saying the first he knew of them was after they were asserted in these proceedings. The wife does not assert that the husband knew of the loans at the time. Each party agrees that the wife handled the family’s finances at all times during their marriage. The wife asserts she received the money from her father on each occasion it was obtained from him and that it was all spent on the family’s “living expenses”.
The first loan is said to have been advanced in 1994, the same year the wife’s parents moved to Australia. The second loan is said to have been advanced in July 2002, the year before the parties themselves moved to Australia.
The wife’s case is that no amount of the second loan has ever been repaid either. The wife’s father said in evidence that he still expects the wife to repay the loans, when she can afford to. The wife says she still intends to repay her father, when she can afford to.
I will say more of these loans later in these reasons.
After the parties moved to Australia, they bought the property that became their Australian family home. They paid $270,000 for it and borrowed $100,000 from the wife’s parents. They agreed to repay the amount borrowed with interest over 20 years at monthly amounts of $989.93, totalling $237,583.20 and they gave a mortgage securing the debt to the wife’s parents. That mortgage was registered on the title to the property.
No other amount seems to have been borrowed to purchase the property, so it can be inferred, safely I consider, that the parties themselves contributed the balance of the money required to purchase the property, namely $120,000. The parties had brought that money with them from Fiji, having each cashed in their accrued superannuation benefits on leaving that country.
The husband’s case is that he thought the wife was periodically repaying this loan to her parents as required. The wife’s case is that she was putting aside money to pay it and that she had $170,000 in savings in a bank account for that purpose by mid-2008.
After the family migrated to Australia, the wife obtained full-time employment with a government agency and she has been working there ever since. The husband obtained employment as an office equipment technician. He continued to be employed in that capacity until March 2013 and since then has been working, self-employed, in the same field.
As I understand the evidence, the parties’ child was diagnosed in 2004 by a paediatrician in Australia, Dr D, as having autism. The evidence suggests that the husband and the wife had differing perceptions of the level of disability actually suffered by the child and, indeed, there is evidence that even supports a finding that the husband did not accept that their son had autism although the husband appears to say now that he always did.
In any event, what is not in dispute is the fact that prior to the separation of the husband and the wife, the child was attending the N Special School and the family was being assisted by carers who were providing care and supervision for the child each afternoon after school until both parents came home from work in the evening. Those facts support a finding, at least, that both parents accepted that the child was a boy who had some very special needs at least.
The husband and the wife, although having been together as a couple for nearly thirty years, had experienced substantial difficulties in their relationship. The husband concedes there was one occasion when they were living in Fiji on which he physically hit the wife in the face. There had been at least three occasions before their final separation when the husband had left the home and stayed away for a short time before returning to the relationship. On none of those occasions did he take the child with him. When he left the family home for the final time in July 2008, again he did not take the child with him nor in any way seek to take him with him. This is particularly significant when considered against the husband’s assertion maintained throughout the years of parental conflict since separation and in his evidence at the trial that he was the primary carer for the child at the time of their final separation.
The wife did not want a separation or an end to the marriage. She sought reconciliation with the husband and arranged several mediations which she says the husband refused to attend. The wife asserted that the husband showed no interest or concern in the wellbeing of their son for many months after their separation. The husband certainly did not assert that he made any effort to see their son, or that he even wanted to see him, prior to January 2009, some six months after he left the home. He asserted that was because of the difficult emotional turmoil he was experiencing and that because there were safety issues to consider he did not have suitable accommodation in which to see the child. He also asserted that he was getting to know his new partner in that time and needed to be sure that he had her support for the continuation of a relationship with his son.
In or around October 2008, some three months after the separation, the husband met and formed a relationship with his new partner, Ms R. By the end of October 2008, around eleven days after they met, he had moved in with her and commenced cohabitation. His new partner had also been married before and had two older teenage daughters.
The wife asserts that the months after the husband left the home were extremely traumatic and difficult for her, particularly in respect of the reaction of the child to his father’s sudden absence. The wife asserts that the child’s behaviour at home and at school deteriorated significantly during these months and that having to cope with that on her own, as a single parent, at the same time as having to deal with her own grief at the loss of the relationship was very difficult.
Soon after separation, not receiving any financial assistance from the husband for the support of their child, the wife applied for child support from the husband through the Child Support Agency (“CSA”). An administrative assessment issued and in September 2008 the wife applied for a departure from that assessment on the basis of the child’s special needs resulting in greater than normal expenditure for her as a parent. Departure from the original assessment was determined by the CSA’s internal processes and an increased assessment put in place. In November 2008, the wife objected to that assessment and sought further departure.
In January 2009, the husband, with the encouragement of his new partner, wrote an email to the wife asking to spend time with their child. The wife refused that request.
In February 2009, the wife’s further child support departure application was determined. It was partly successful and another departure was put in place. In March 2009, the husband appealed the CSA’s internal departure determination to the Social Security Appeals Tribunal (“SSAT”) as he was entitled to do.
The husband followed up his first request to spend time with their son with a few more such requests over the early months of 2009. The wife also refused those requests, asserting that reintroduction of the father to their child would need to be done with careful consideration of its effect on the child having regard to his autism.
The SSAT heard the husband’s child support appeal on 19 June 2009. The husband was represented by an experienced family law solicitor at that hearing. Further evidence and submissions were taken by the SSAT during July that same year.
On or around 25 July 2009, the husband called the wife’s home phone number and spoke with a carer who was with the child. He asked if he could speak with the child but was not allowed to. The wife had instructed the carer not to allow this if the husband called. On the child’s birthday, in early August, 2009, the husband again called the home number and spoke with the wife. He asked to speak with the child and the wife refused to allow it, telling him to speak with her solicitor.
A couple of days later the husband filed an Initiating Application seeking parenting orders in the Federal Magistrates Court. He sought orders that the child actually live with him and his new partner.
On 21 September 2009, the SSAT reconvened and made its decision. By its decision, the SSAT departed again from the CSA’s assessment, actually increasing the husband’s child support liability by a considerable amount because of the assessed special needs of the child. The decision included changing the husband’s assessed annual rate of child support for the period 1 February 2009 to 30 June 2010 to $17,992, which the SSAT found was less than half of the actual needs of the child.
The very next day the husband filed an Application in a Case in the parenting orders proceedings he had already commenced in the Federal Magistrates Court in which he sought to have the child removed immediately from the wife’s care because of allegations that she was abusing the child in the way that she was caring for him. A Notice of Child Abuse was also filed. There is no dispute that the husband’s new partner was very much involved in assisting the husband in the decision making and steps that were being taken by him in respect of these matters at this time.
The husband’s application was listed before Jarrett FM (as his Honour then was) on 13 October 2009. On 9 October 2009, the husband and his partner attended at the N Special School without the knowledge or consent of the wife. It was the husband’s new partner’s idea that they do so. They asserted they went there to speak with the school’s Principal. The Principal and the child’s teacher were unavoidably absent that day. The husband and Ms R asserted one of the teachers who was present invited them to spend some time with the child who was at school that day. They did spend about an hour or so with him. It was the first time the child had seen his father since the separation in July 2008 and it was the first time he had ever met Ms R.
By the account of the husband and Ms R the child was pleased to see them and enjoyed the time that he spent with them. The husband exhibited to his affidavit evidence photographs taken during that visit which certainly do not reflect the child in distress. However, evidence from the wife and from a woman who was employed as the child’s employed carer at that time, Ms A, is that after school that same day, the child was emotionally very unsettled and had a number of violent temper tantrums, including one in the middle of the night that required the wife to call Ms A to come to the home around midnight to assist the wife to settle the child, a process which took around 30-45 minutes. Their evidence was that the child went on to display very poor behaviour over the next week. The wife’s evidence was that the child’s highly disturbed behaviour then went on for several months after that.
On 13 October 2009, the then Federal Magistrate refused the wife leave to rely on affidavits of evidence about the husband’s 9 October visit to the child’s school. His Honour made orders that provided for the child to live with the wife and to spend time with the husband each Saturday from 9:30 am to 1:30 pm. The appointment of an ICL was also ordered.
The child did not spend any time with the husband pursuant to those orders. When the husband turned up at the former family home to collect him, neither the child nor the wife were there. On 26 October 2009, the wife filed an Application in a Case seeking that the orders that provided for the child to spend time with the husband be suspended. The then Federal Magistrate refused to suspend the orders but transferred the proceedings straight to this Court.
A Family Consultant then undertook a very limited Children and Parents Issues Assessment for the Court and effectively recommended the need for a more thorough assessment of the issues before the child actually started spending time with the husband. Expert opinion from a psychologist, Dr F, who was working for an organisation called “M Organisation” which specialised in working with parents and autistic children and who had already been working with the wife and the child at that time was also put before the Court. It recommended a graduated program of reintroducing the child to the husband. The wife’s application for suspension was listed for hearing before Principal Registrar Filippello of this Court. The Principal Registrar suspended the then Federal Magistrate’s orders providing for the child to spend time with the husband and made further orders that provided for an introduction of the time the child spent with the husband pursuant to a “transition program” facilitated by Dr F. The husband was also to commence therapy himself to educate and assist him to accept and accommodate the special parenting needs of the child.
The husband and Ms R attended upon Dr F for a total of five one hour appointments between November 2009 and March 2010. Dr F reported on the sessions. Significantly, she reported that the husband did not demonstrate a consistent acceptance of the child’s autistic disorder and the magnitude of the child’s difficulties over the course of the five sessions. Dr F decided to cease the appointments. She stated, at that time, that she remained concerned about the husband’s over-confidence as to his capacity to parent the boy, his overly optimistic view of the boy’s prognosis and the allegations of child abuse and psychiatric illness he and Ms R were making towards the wife. Dr F questioned whether the husband and Ms R would be able to work collaboratively with the wife in respect of arrangements for care of the child.
Dr D, a paediatrician with a special interest in child development and behaviour who had been seeing the child since 2004, had also written a letter in late 2009 to the wife’s solicitor in which he expressed the opinion that:
Management of an autistic developmental disorder is such that the collaborative and mutually understanding relationship with professionals and other care providers is of significant prognostic importance to future wellbeing.
The ICL then arranged for the psychiatrist, Dr H, to see the husband and the wife and the child to provide a report for the assistance of the Court. Dr H expressed the opinion that neither parent had any evidence of a diagnosable psychiatric disorder. He said that the wife has “some obsessive-compulsive personality traits” but he was not concerned that these cause a level of interpersonal dysfunction that would be required to make a diagnosis of personality disorder. Of the husband, Dr H said “he has significant narcissistic traits” but was not concerned enough to consider they reached the level of diagnosis of personality disorder. However, the Doctor did express the view that those traits have interfered with the husband developing an appropriate working relationship with the medical specialists involved in caring for his child and his accepting other people’s expertise in their relevant field.
Dr H went on to express an opinion that was based on acceptance that the husband demonstrated poor insight and co-operation with regard to a joint approach to parenting and co-operation with treating practitioners. That opinion was that the Court may have to consider conferring sole parental responsibility on the wife in respect of health and education matters and that the child’s time with the husband would need to be introduced by a graduated process in familiar situations with other familiar people present in the early stages. He said that attempting to do something like supervision of time at a children’s contact centre would be a recipe for disaster with a child of this disability.
The matter came before Barry J, now retired from this Court, on 29 July 2010 on what was apparently a “first day of trial” pursuant to a case-management system no longer utilised in this registry of this Court. Barry J made interim orders that the wife have sole parental responsibility for the child, that the Principal Registrar’s orders be suspended, that the husband was only to complain to the ICL if he had complaints about the wife’s treatment of the child and the husband was restrained from complaining to the Department responsible for child welfare and anyone else in authority about the wife’s treatment of the child. His Honour’s orders did not provide for the child to spend any time with the husband and the matter was to be managed to a final trial by his Honour.
The husband then agitated for the facilitation of a reportable supervised interaction between him and the child as part of the preparation of the matter for trial and, consequently, the matter was again before Barry J on 4 November 2010. Evidence about that was before his Honour from Dr D and Dr F. Neither of them appeared to support the idea that such a reportable interaction was essential for the Court to determine the substantive parenting orders issues that were before it. That day, his Honour adjourned the matter to a date to be fixed. No order for a supervised interaction between the husband and the child was made.
Rather unfortunately for the parties, his Honour Justice Barry then retired in 2011 before the matter could be finally heard by him. The matter was then case managed by Registrars through to the point where it was considered to be ready for trial and in March 2012 it was listed by his Honour Justice Murphy, who was the then Case Management Judge in this Registry, for a trial before her Honour Justice O’Reilly over a number of days in August 2012.
On 7 August 2012, the trial was part-heard before her Honour and then adjourned with orders made that the husband and Ms R attend again upon Dr H for further assessment and for such report to be provided to and considered by Dr D and for Dr D to facilitate two meetings between the child and the husband if he considered it appropriate and then to provide a report to the Court. The matter was listed again before her Honour for 7 November 2012.
There then ensued a stand-off between the ICL and the husband over payment of Dr H’s fees for his report. By consent, her Honour had ordered that the cost of the report was to be paid for Legal Aid Queensland but that if it refused to pay then the payment would be made by the husband. Legal Aid Queensland agreed to pay half of the cost but the husband then refused to pay the other half and, for a while, Dr H did not release his report. Ultimately, the doctor himself absorbed half of the cost and released the report. However, the matter was again adjourned, part-heard, to 23 January 2013. Again, rather unfortunately for the parties, her Honour also retired from the Court before this date and the matter was again case managed by a Registrar until it came to trial before me, earlier this month.
In the meantime, in March last year, the husband gave up his employment as an office equipment technician with Company O in Brisbane. He attributed that to the fact that he suffers sleep apnoea and that he was struggling to stay awake driving home from Brisbane to the Gold Coast each night and he did not want to risk an accident. He has been working with another man running their own office equipment refurbishment, sales and maintenance business since then and has earned about $5,000 to $7,000 gross from this business in the year that has passed since then.
On giving up his employment, the husband started to pay only $30 per month in child support to the CSA for his liability for child support for the child. Indeed, he confirmed in evidence at the trial that he had not paid even that relatively small amount per month since December last year. Exhibit 14 at the trial was a Certificate from the CSA pursuant to s 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) setting out the husband’s child support debt as at 14 March 2014 as $12,209.11. Exhibit 13 at the trial was a copy of a letter from the CSA to the wife informing her that the husband’s child support liability has been assessed at $439.67 per month for the period 1 January 2014 to 31 March 2015.
In 2013, the husband and the wife were again assessed by Dr H who provided another report about them to the ICL.
The week before the trial was listed to commence, I heard an application by the husband to adjourn the trial again and for orders that a reportable observed joint session between him and the child take place under the facilitation of Professor Q, another expert psychologist attached to the M Organisation Centre. That was opposed by the wife and by the ICL and, for reasons I gave at the time, I refused to adjourn the trial and to make orders for such a facilitated session at that time. The trial then proceeded before me from 10 to 17 March.
The Orders sought by the husband at the end of the trial
The husband was represented by a solicitor at the trial, who at the start of his oral submissions to the Court at the conclusion of the evidence in the trial handed to the Court a minute of the orders sought by the husband.
The orders sought were:
1. That the Child, [K], have contact with his father.
2. That such contact:
a)commence with a 15 minute visit, in the presence of [the child’s] carers (as nominated by the mother) each Monday, Wednesday and Friday.
b)be in accordance with a reintroduction strategy, that is in the best interests of the child, developed by the recommendations of Professor [Q] (or such other expert as this honourable court decides).
c)That such contact include provision for skype and/or telephone contact, initiated by the mother.
d)That all parties follow and cooperate with any terms and conditions developed or required in writing by Professor [Q] (or such other expert as this honourable court decides), including the attendance of the [child], if this is requested.
e)that such contact progress towards 3.00 pm Friday to 9.00 am Monday, each fortnight.
f)for one half of the school holiday period.
3.That, within sixty (60) days, the respondent pay the applicant a sum equal to $152,000 less any amount currently owed for child support. If the applicant is unable to secure finance in this amount, within this period, then the marital home shall be listed for sale at a real estate agent agreed by the parties for a price as agreed by the parties or failing agreement, for $380,000.
4.That the proceeds of this agreement, after payment of all costs and fees in association with this sale, including real estate fees and legal fees are deducted, be split on the basis that the wife shall receive 60% and the husband shall receive 40%.
5.That the value of the mortgage to the father is to be taken out of the mother’s share of such property sale.
6.That the parties retain possession of all assets currently in their possession.
7.That each party indemnify the other party for any liabilities incurred after separation
8.That the mother indemnify the father for any debts incurred in relation to loans received from the mother’s father.
As I have already observed, the wife sought to have the husband’s application for the child to spend time with him dismissed and for her to continue to have sole parental responsibility for the child and for the child to continue to live with her. She also sought an injunction restraining the husband from seeking to spend any time with the child or communicating with him by any means as well as from instituting any parenting orders application without the prior leave of the Court. As for property adjustment orders, she sought orders that the husband transfer his interest in the former family home to her and for each of them to retain his and her own superannuation interest. The ICL also sought orders that the husband’s application for the child to spend time with him be dismissed.
How is the Parenting Orders dispute to be determined?
When the Court is determining the proper parenting orders to make it must do so with regard to the best interests of the child as the paramount consideration.[1] The determination is a broad discretionary exercise, but it is to be undertaken in accordance with the express provisions of the Family Law Act 1975 (Cth) (“the Act”). In this process, consideration must be given to a list of “primary” and “additional” considerations expressly set out in the Act,[2] including one as broad as “any other fact or circumstance that the court thinks is relevant”.[3]
[1] Family Law Act 1975 (Cth) s 60CA and s 65AA
[2] Family Law Act 1975 (Cth) s 60CC(1), (2) and (3)
[3]Family Law Act 1975 (Cth) s 60CC(3)(m)
Determination of the parenting orders must also be made in the light of the expressly listed “Objects” of Part VII of the Act and the “Principles” underlying those Objects. These Objects and Principles are set out in s 60B. They include ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child, and recognition of the principle that children have the right to know and be cared for by both their parents and to spend time with both of their parents on a regular basis. These are important principles to remember in determining a case such as this one.
In Preston & Preston, I discussed the application of these Objects and Principles in parenting cases and the relationship between them and the matters required by s 60CC to be considered when determining the best interests of the children in question.[4] The Court’s task is to apply, in a common sense way, the individual sections of the Act guided by what it considers is in the best interests of the children in each particular case. The actual weight to be attached to the individual components of the statutory provisions will vary, sometimes significantly, from case to case.
[4]Preston & Preston [2011] FamCA 618, at paragraphs [37] – [47]
In B & B,[5] the Full Court of this Court observed that it is well accepted that in most cases meaningful contact by a child with both of their parents is important to the child’s welfare in the short and long-term. I must point out though, the Full Court also acknowledged that there are always cases where the best interests of the children will require contact with a parent to be curtailed or even terminated.
[5] B & B: Family Law Reform Act 1995 (1997) FLC 92-755
Ultimately, answers to questions such as whether it is in the best interests of a particular child to spend time with a parent with whom he does not live and, if the answer is yes, under what circumstances should such time be spent, are matters to be determined having regard to the evidence that is presented in the particular case considered against the Objects and Principles set out in Part VII of the Act and in accordance with the statutory pathway also provided for in Part VII of the Act.
In this matter, although the husband’s case had, since August 2009, been one of contending that the subject child should live with him and that parental responsibility for the child should be shared, at the trial the husband, through his solicitor, quite sensibly conceded that the wife should have sole parental responsibility for the subject child and that the child should live with her. Accordingly, the parenting case became one of just having to determine what time, if any, the child should spend with his father with regard to the child’s best interests being the paramount concern.
My consideration of the evidence
The husband says he is prepared to do anything it takes to see his son and to assist the wife with bringing him up. He says he does not bear his former wife any ill-will and is hopeful that they can work together to raise the child. He asserts that he would have no difficulty with the wife supervising visits during a transitional period or with visits being only 15 minutes to a half hour in length. He asserts he is prepared to accept any instructions given by the doctors during a process of reintegration.
He seeks to have Professor Q involved in the facilitation of a reintegration of his relationship with his son. I am satisfied that position is based on the fact that Dr D and Dr F suggested Professor Q might be an appropriate person to help and, when the husband and Ms R learned of that they went to see him and discussed the case with him and gained a favourable impression of him.
To that point, Dr H had, in his updated report of 3 November 2013, confirmed that he still held the view that the husband has significant narcissistic personality features that have interfered with him developing appropriate working relationships with the medical specialists who are involved in caring for his child and his accepting other people’s expertise in their relevant field. Dr H expressed the opinion that the husband continued to be intrusive, overconfident and unrealistic in his opinions regarding the child and the doctor noted no significant change in the husband since he had previously assessed him in 2010. Dr H acknowledged that he had previously recommended that the treating practitioners continue to attempt to involve the husband actively in the management of the child in order to increase the husband’s level of understanding, but he pointed out that such a process has not progressed well.
I accept all of that opinion expressed by Dr H.
After having read Dr H’s report, Dr D expressed the following opinion:
...the potential for harm arises if the Father is not able to maintain an appropriately informed level of care, and a degree of respectful collaboration with the Mother that facilitates seamless continuation of care strategies for a boy who has low cognition and major psychological problems with change.
I discussed this with [Dr] [F]. We agreed that neither of us is the appropriate person to educate the Father regarding [the child’s] disability and the necessary care strategies, because of our role in this matter. We believe, however a re-integration program needs to be under quality professional supervision if we are to protect the child from harm, the potential for which I still consider to be significant.
The suggestion arose from these conversations that the re-integration should be supervised by Professor [Q] who provides clinical services through the [M Organisation] clinic, and is aware of the child’s circumstances and special needs. He is a recognised expert. I believe he has agreed to do this if requested. I would recommend the process begin with a one hour appointment between the Father and Prof [Q] before [the child] becomes involved.
This, I am satisfied, is where the husband has found the support for his proposal that Professor Q be the expert who works to facilitate a reintegration of the husband into the child’s life.
After that, Dr D wrote a letter to Professor Q on 10 December 2013. It became Exhibit 11 in the trial. In that letter the doctor expresses the following opinion:
I have long had the opinion that protection of [the child] from harm is the more important consideration as compared to his right for a meaningful relationship with his father. He is a boy with little developmental and mental health resilience, a boy who is easily upset.
There has been a level of persistence on behalf of [the child’s] father ([Mr Ralph]). The most recent episode in this is a psychiatric opinion from Dr [H]. My reading of this opinion is that there was evidence of problems in terms of [the father’s] personality structure, but insufficient to say that there was a disorder from which we could unambiguously say it is not in [the child’s] interests to have a relationship with his father.
The resolution of this I believe needs to be definitive. If we were to continue to say that our preference is for [the father] not to see his son, I would expect this matter to continue indefinitely, with a continuing attrition and erosion of [the child’s] wellbeing from the activities associated with this. For this reason, I have recommended that [the father] have the opportunity to demonstrate a substantial change in his beliefs, attitudes and capacities that would be necessary.
Our belief that contact with [the father] would lead to harm has a number of background factors. The objective facts in this I believe relate to his lack of ability to act in his son’s best interest during the current proceedings, in combination with his expressed beliefs regarding the nature and causation of his son’s problems.
It is my understanding that he has failed to meet his financial obligations to support his son, and that his relationship with [Ms Medlock], [the child’s] mother, has been consistently problematic, based on undermining her confidence, even though she is the parent caring for his son. This has included allegations presented to government departments based on his perception that [the mother] has perpetrated child abuse. These allegations have never come close to substantiation as far as I understand it.
From my own interactions with [the father], I formed the belief that his quest is more about resolution of his own psychological needs. The potential for harm arises from [the child’s] precarious mental health. He is particularly fragile when it comes to unexpected change, including change in circumstances, but particularly changes in the psychological environment. If there is conflict, unexpected behaviour, discord and other types of change, this has a disproportionately powerful and negative impact on [the child’s] mental health. These changes lead to behaviours which make the physical management of [the child] particularly difficult.
I would suggest the need for a number of sustained behavioural changes as well as clear changes in expressed beliefs long before he has any opportunity for face to face contact with his son. I would wonder, for example, whether attendance at courses, participating in groups with other parents and other such strategies, may be considered as possible. This is not a superficial technical issue of how best to manage communication and behaviour. It is a fundamental capacity to adapt to what is a very complex and challenging situation with his son’s development.
Dr D gave oral evidence at the trial. He explained that his “main motivation” for making recommendations to bring Professor Q into the process was to “bring the whole legal process to a close”. He said that now that he was aware that there is “a legal proceeding actually addressing” the issue of whether the child should actually spend time with his father at all rather than there being a simple expectation that there be reintegration through a clinical process, he would make a different recommendation. The doctor went on to say that he “truly believe[s]” the whole process of reintroduction and recurrent trauma of all of these processes has a particularly adverse effect on the child. He said he is really just of the opinion that reintegration should not be done at all.
Dr D said that this case really comes down to “marrying the clinical needs of the child against the child’s right for a meaningful relationship with [his] father” and that “for a whole variety of reasons” he considered any attempt at reintroducing the child to his father now after almost 6 years was going to be harmful to the child.
Dr D said the child, although 14 years of age, was functioning at a two year old age level in terms of his spoken language. He said the child was functioning at less than a two year old age level in terms of his social relationships. He also said that from a functional self-help position, the child was functioning at a three to four year old age level. The doctor went on to say that for the child to grow into an adult who can get on with people and live in some form of supported accommodation as opposed to a high needs adult with significant mental health problems, the next few years of his life are absolutely critical. The doctor opined that the child lives “right on the edge and his capacity to tolerate variations in routine and unexpected situations in his life” is much more marginal than the average child.
Dr D went on to say that there are two mechanisms by which harm could occur to the child if reintroduction to his father was persisted with at this point in time. He said there could be a direct impact on the child and there could also be an indirect impact on the child by way of the interference with the stability of the care arrangement offered by the child’s mother. The doctor suggested that the child’s placement with his mother is precarious and that her capacity to cope should not be undermined any further such as to create a risk of the child ending up in the care of the Government, as he said, so many autistic children do.
Dr D said that it was his opinion that the husband started off with a high level of denial about the nature of the boy’s problems even though the problem is self-evident, and then moved on to a high level of accusations against his former wife, accusing her of either fictitiously creating or exaggerating the child’s issues or actually causing his problems through abuse. Dr D considered that those were two very distorted perspectives of reality. He expressed the opinion that to be able to move from that level of distorted reality to a situation where you could work harmoniously with the wife in a very complex situation would actually require a great deal of mental health change. He asserted that if the husband had reached that point he would be expected to be conceding that he had got things completely wrong and accepting that he needed professional therapeutic help.
Under cross-examination by the solicitor for the husband, Dr D asserted “the idea of actually denying a father access to their child is really an unusual situation for me … it goes counter to everything I intuitively believe in … [M]y whole job is about trying to support parental relationships...”. He said that to highlight just how unusual and difficult it is for him to be saying in this case that the child’s wellbeing would be put at risk if he is reintroduced to his father now.
Dr D went on to say that one of the biggest predictors of autistic children doing poorly is the separation of their parents and that the greater the cohesiveness and unification of support the better for the children. The doctor said that the child’s sense of predictability and certainty and his sense that the world is not going to be a threatening and uncertain place is highly dependent on his mother’s mental health and predictability of behaviour. He repeated that the husband’s attitudes towards the child’s level of disability and the mother’s role in the care of their son just did not allow for predictability of the necessary cohesiveness and co-operative support required to deliver best possible outcomes for the child. The doctor said he just could not offer an opinion as to whether or not the child could develop an emotional father-son bond with his father that would offer potential benefit to him as not enough is understood about the impact of autism. He said that if the child’s mental health deteriorates further during the critical remaining teenage years the child will be a very different adult compared to what he is likely to be if his stability of mental health can be maintained.
The doctor clearly did not favour or support reintroduction of the child to the husband. However, he went on to say that if reintroduction was what was opted for, the key ingredient for it to work would be trust in the relationships – between the parents and the professionals and between the parents themselves. Indeed, Dr D said “the critical variable is the degree of mutual understanding and mutual respect between the separated parents” and that “the essence for a child with an intellectual impairment is to have a really strict routine and predictability so that they know what is going on in the world”.
When Dr H gave oral evidence at the trial, to the question whether he considered there was some way of getting the husband to spend some time in his son’s life, he responded “one would hope so, but I can’t necessarily see it”. Significantly, in my view, Dr H went on to express the opinion that there is a “lesser positive effect on a child with autism in spending time developing a strong relationship with a parent than for a child without a disability”. He opined that it would be very unhelpful if the husband started spending time with the child and began making unilateral changes to the child’s routine as this could “manifest itself afterwards in the mother’s setting”. Dr H suggested that the issue for consideration is whether the husband would comply with someone else’s plan.
Both the husband and his current wife, Ms R, gave oral evidence in the hearing and were extensively cross-examined by counsel for the wife and counsel for the ICL. They both tried very hard to present a picture of acceptance of the major difficulties confronting the subject child and of a current desire to work co-operatively with the wife in parenting the child. However, I was still left with the impression, just as Dr H was after his last lot of observations of the husband, that both of them still thought that they could do a better job of parenting the child than the wife does.
Indeed, they were only prepared to concede that the wife is doing as good a job “as she can” when pressed to express their opinions about the level of the wife’s care of the child. They confirmed that they had over the last few years complained about the wife to the Department of Child Safety, the Queensland Police, the Australian Federal Police, the Australian Tax Office, the Australian Securities and Investment Commission and the Human Rights and Equal Opportunity Commission. They confirmed they had accused the wife of abusing the subject child, tolerating and acquiescing in his abuse, including physical and sexual abuse, by third parties at his school, lying to the CSA and the SSAT, and committing fraud on the Australian Taxation Office. They confirmed that they had hired and paid for a private investigator to conduct secret surveillance on the wife and the child at around the same time as Dr H’s report was being withheld because of the husband’s unwillingness to pay half of Dr H’s fees. They confirmed that they had maintained and advanced the view that the wife suffered from Munchausen by proxy syndrome (although they said that now they accepted that she does not), a mental illness where a parent makes up or exaggerates symptoms in a child in order to get medical care and attention that is actually unwarranted. They confirmed they had also written to Dr D, Dr F and some others involved in the child’s treatment informing them, wrongly, that the wife had been “medically diagnosed with Obsessive Compulsive Disorder by Forensic Psychiatrist Dr [H] causing mental instability in her decision making” and asserting to those professionals that they had been “used by the mother for spiteful reasons to withhold the child and extort money”. They confirmed that they had made complaints about Dr F to the Australian Medical Board, that they had complained about Dr D, and that they had complained about the professionalism of the two solicitors who had been ICL’s in the Court proceedings since their inception, as well as one of the husband’s own former solicitors. They confirmed they had complained about the school attended by the child and the school principal of that school for the way they believed the child was being treated there.
Having read and heard the evidence in this case, I am satisfied that the husband and his wife, Ms R, present as totally sharing all of their views about the child, the wife’s care of the child and the roles the various professionals have played in the mother’s care of the child and these proceedings. They also agreed that virtually all of the emails, affidavits, letters and written documents that have been created bearing the husband’s name or his current wife’s name or both over the last six years have been written by Ms R. There was little, if any, evidence of independent thought and action on the part of the husband that they could point to. I am satisfied that the husband’s actions in this case have been fervently encouraged, completely supported and to a very significant extent directed by Ms R. She did not seek to deny this but asserted that she has acted out of love for her husband.
Rather surprisingly, given the fact that the husband and Ms R were trying to present a picture of having changed perception about things over the years, in her oral evidence Ms R positively asserted that she did not “regret” any of the things that she and the husband had done in respect of this matter over the years. She said that she could not regret the things that they had done as they cannot change them. She simply asserted that they had formally apologised to the wife for past wrongs they may have done to her and expressed the view that now everyone should be prepared to move on and work together. There was a distinct absence of observable remorse, empathy for the wife and insight into how all of the complaints and allegations that she and the husband had made against the wife during the course of these proceedings may have impacted upon the wife.
In any event, despite their efforts to present as having changed perceptions, all of the evidence satisfies me that the husband and Ms R have not really changed their perceptions at all. An email that they jointly sent to Professor Q’s office in the period just leading up to the trial (Exhibit 3) included the following:
[The husband] and I also are seeking Professor [Q’s] guidance on how we can best help [the child] moving forward.
I see that there are 3 options
1) That we have zero contact with [the child] moving forward and he spends his future with his mother in the wheelchair to prevent any “fallout”
2) That we have shared parenting and [the husband] can support the child’s growth and development – this has been our attempt (albeit unsuccessful for the past 5 years)
3) That [the child] lives with us full time and sees his mother regularly to maintain relations with her. This will help to relieve the full burden from the mother who clearly struggles to cope.
In another email written by Ms R on behalf of herself and the husband to Professor Q on 4 March 2014 (Exhibit 7) the following is included:
Our concerns are that [the child’s] future will be one of significant confinement and that this will severely impact his growth and development. The other party is fighting tooth and nail to stop any contact with his father and refuse to accept your request to witness interaction with [the husband] and [the child]. I suspect they do not want the truth to come forward and this raised concerns about what is happening behind closed doors to the child.
[The husband] and I have a very limited opportunity to help [the child] in any shape or form, and this door is rapidly closing on this poor boy.
Unfortunately Dr [D] has written some very bad things about [the husband] without ever having had any meeting or consultation with [the husband]. The information given to Dr [D] has been falsely provided by the Independent Children’s Lawyer (who we believe is not really independent). Dr [D] has involved himself in the Court Process however has been misled and has given hearsay evidence in a sworn statement. We fear this may jeopardise his career and standing under cross examination in the Court.
[The husband] and I feel that you need to be aware, [the child] spent nearly 1 whole year caged up in the sandpit at the school, locked outside, left in the pouring rain, naked, all day every day and sitting in his own excrement because the teachers didn’t know what to do with him. This broke our hearts, however the ICL and mother don’t seem to care at all about this, and certainly don’t want this information coming forward which is contributing to their needs for withholding of [the child]… Even the school principal is covering up the tragedy. The depth of evidence we have supporting this case is massive and we need a specialist who truly has the child’s best interests at heart to step up and help. Please, please, please, you are the only person we can turn to.
I am satisfied the content of these emails, only very recently written, demonstrates that the husband and his wife have not changed their fundamental perceptions about the child and the mother’s care of the child at all, and still believe that the child would be better off living with them than being cared for by the wife who has singularly parented him for almost six years in extremely difficult circumstances. That the husband and his wife both gave evidence that when the husband saw the email to Professor Q he told Ms R to send another email to him retracting that one does not persuade me that the views expressed by Ms R in the email are not ones shared with her by the husband. His attempts in the witness box to distance himself from the content did not persuade me either that he does not share those same views.
As I accept the opinion evidence of the experts, Dr D and Dr H, (an opinion that is shared by Dr F also), that co-operative mutuality of understanding of the child’s disability and the special needs it creates, as well as mutual respect for the position of the other parent and the role they are playing in the child’s life, is essential for any shared parenting regime to be of any benefit to this particular child, my satisfaction about the fundamentally unchanged perceptions of the husband and his wife is fundamental to my determination of the husband’s application.
I cannot currently find that a shared parenting regime could work in this child’s interests. The husband’s desire to have a relationship with his son, as real and as strong as I accept it is, cannot be the sole determinative of these parenting proceedings. Parenting orders are simply not determined on the basis of notions of parental rights. They are determined by a careful process of considering what is in a child’s best interests. In the particular circumstances of this case, I am satisfied that the critical need to protect this child from harm clearly outweighs any potential benefit to him of re-establishing a relationship with his father.
As such, whilst I cannot see that the child’s best interests are served by trying to establish a shared parenting regime, is there any room for a determination that it is in the child’s best interests to make orders that the child just spends short 15 minute periods with the husband on a regular basis, such as the three days per week the husband seeks?
In answering this question, I am drawn inexorably back to all of the evidence about the incredible need that this particular child has for stability and predictability and an absence of novelty and change. I also must consider the evidence, which I accept, of the significant detrimental impact upon the child and his behaviour that was caused by the spontaneous, unexpected visit of the husband and his wife to the child’s school in October 2009. All of this evidence persuades me to find that it is not in the best interests of this 14 year old autistic child to make orders that he start spending any periods of time, no matter how short in duration, with his father.
What regard have I had to the evidence of Mr U and Mr W?
I cannot move on from my consideration of the parenting orders dispute in this case without reference to some particular evidence that took on a degree of importance in the husband’s case. The husband and Ms R gave evidence that in 2010 they received information from a man employed at the Special School the child attended, Mr U, that gave them cause for great concern and which made them believe that the school was mistreating the child and that the wife acquiesced in that mistreatment and did not care about it.
Ms R said she went to the school one day in 2010, another spontaneous, unilateral decision of hers, and that she saw the child and met Mr U. It seems that at Mr U’s request Ms R gave him the husband’s telephone number and Mr U and the husband and Ms R began communication. Mr U communicated to them his concerns for the way in which the child was being treated by the school. The husband and Ms R seem to have accepted the information from Mr U without any question at all. It is that information, principally, that led to the allegations that the child was kept “caged” in the sandpit for a year, “naked” and “sitting in his own excrement” originated from.
Exhibit 9 in the trial is a statement of Mr U’s provided to the husband and Ms R dated 28 July 2011 and addressed to the ICL. The ICL caused Mr U to be called as a witness in the trial and he was cross-examined by all the parties. He asserted that Exhibit 9 was his document created by him and he adopted the accuracy of its content.
Mr U was working at the School, first as a road crossing supervisor and then as a teacher’s aide from 2003 until late 2011. In 2010 he was working as an aide in the class that the child was in. He learned that the wife was looking for a person to provide additional care for the child outside of school hours and he made contact with her seeking such employment with her. After getting some initial positive feedback from the wife, she informed him a few days later that she had spoken to one of the child’s teachers and consequently felt it was better not to hire him as a carer.
He then went on to outline concerns he said he had for the child. He said that during 2010 the child sometimes arrived at school sick and when the wife was called to pick him up from school she would not do so. He said that he had written to the school Principal, Mr W, in August of 2010 expressing a grievance that the staff were not being looked after as when the child was violent towards him, such as biting him, he was not being suspended as Mr U said he had been promised would happen. After sending that letter, Mr U said he was moved from the child’s class. He said that towards the end of 2010 the child was spending more time in “confined and isolated spaces”. He said that as 2011 began, the child began being aggressive and was “placed in a secured sandpit from 10 am to 2 pm most school days”. He said that he had remarked to the child’s teacher on occasions that the child wanted to be let out and was told it was the Principal’s direction that the child was to have no interaction with other children for fear of injuries.
Mr U said “this year [2011] [the child] has had no interaction with any children during playtime or class time. [The child] eats by himself. [The child] has been in the ‘sandpit’ during the 1st term of 2011 and is given a hose to play with while he is secured in this area. On the occasion when it rained, he was still in this sandpit. This area had a shade cloth added to the front of it and shade cloth was placed on the adjoining fence to block the view of him secured in the sandpit.”
Mr U referred to the “final straw” for him being a day he said the child was in the sandpit and it was teaming down with rain. He said it was a cold day and the child was still left in the sandpit. He said that he asked a teacher to call the Principal and that when he arrived Mr U said that he told him that he felt keeping the child in the sandpit was cruel and he asked Mr W “what if his mother knew?” He said that Mr W replied to him “his mother doesn’t care as long as he is here.”
Mr U said that two days later, again the child was left in the sandpit in the rain and this time he had no clothes on. Mr U said that he rang the police and then rang Juvenile Aid who, he said, told him to get the school to deal with it. He said he then rang DOCS who said it was a school matter. He said he then rang “head office for this area” and was told that they would check on what was happening. He said the child was not put in the sandpit again after that phone call.
Mr U said in his statement that he believed his job was on the line because of his actions. He also said he was “an abused child [himself] from the age of 6-12” attributing that to be an explanation or motivation for his actions.
Mr U gave oral evidence that he had a brain tumour being removed “at the time” which I took to mean in 2010-2011. He gave oral evidence that he believed that there was a conspiracy between the school Principal, Mr W, and officers of the Education Department to cover up the whole issue of the child’s abuse at the school. He gave oral evidence that he had informed the husband and Ms R that it is possible that the child had been sexually abused at the school as a person had been employed there who was discovered to have been a suspected “paedophile” and that person had looked after the child. He gave oral evidence that no other member of staff would support what he had said.
Mr U had since left the employ of the Department of Education and left the school.
Evidence from Mr V was also adduced by the ICL. Mr V had sworn an affidavit that was filed on 26 October 2009. He has been employed as a Teacher’s Aide at the same school for around 12 years, and has been there the entire period of time that the child has been at the school. In addition to being a Teacher’s Aide, Mr V is also employed as the child’s one-on-one carer on the bus ride from his home to the school and home again. He is responsible for the child’s safety during these periods when the child is secured in his seat by a special five point harness/seatbelt that he cannot undo himself. He says the child’s behaviour varies from compliance to seriously aggressive acting out when he can physically harm teachers and other students. No other student on the bus requires the same level of care and supervision as the child.
Mr V was asked about Mr U’s allegations. He said he had read Mr U’s written statement that became an exhibit. He said he was aware of Mr U’s complaints. He said that he does not agree with the views Mr U expressed. He said he was not involved in any way with any matters such as those referred to by Mr U, and also said that in all the time he has been working with the school and with the child he has had no similar concerns about the way in which the child has been treated at the school. Mr V struck me as an honest man whose evidence was reliable.
Mr W was also called by the ICL to give evidence. He said he had read Mr U’s statement. He gave evidence that Mr U had approached him about the child at the school at some point in 2010 and that he complained about the child’s behaviour, wanting Mr W to “get rid of” the child or move the boy on from the school. He said Mr U believed that the child should not be at the school and Mr U threatened to resign if the child was not removed from the school. Mr U told Mr W that he had a brain tumour being treated and he felt physically endangered by the child. He said that he did not remove the child from the school but that Mr U had not resigned. Mr W said that Mr U’s demand for the child to be removed from the school was prior to the incidents that Mr U referred to in the written statement he had prepared.
Mr W said that the teachers at the school were reluctant to have Mr U as the teacher’s aide in their class rooms as he allegedly believed he understood their students better than they did. Mr W said Mr U was particularly difficult to place in a class room. He was not a teacher’s aide that teachers sought to have in their room.
Mr W said he had no recollection of the child ever being sent to school sick and that teachers would have reported that to him if it had happened. He said that he has experienced such events at the school with other parents and that if a teacher had informed him that the child’s mother was refusing to pick him up from school when informed he was sick that he would have called the child’s mother himself and told her to come and pick the child up. He repeated that he had no recollection of that ever happening.
Mr W denied that he treated the wife any differently from other parents of children at the school. He denied that he treated her inappropriately and favourably because he was afraid of the consequences of treating her in accordance with normal school policy.
Mr W described the wife as a very caring, conscientious parent. He said he was pleasantly surprised at times on weekends to see the child and his mother at a local shopping centre, as the child was acting very normally in her care.
He said, in respect of the allegation that a member of staff was a paedophile in 2010 or 2011, that he believed there was a person employed as a Teacher’s Aide who had been arrested on suspicion of some offence relating to pornography and a computer but that person was not at the school very long at all.
As to the allegations about the child being locked in the sandpit for hours each day, Mr W denied them. He did acknowledge that he had advised the child’s teacher that when the child became upset and a risk to others then other children should not be in his space. He denied that the child had no interaction with others, although he observed that the child does not play with other children anyway. He plays alone and enjoys his own space. The child has never shown a desire, that Mr W has seen, to make friends or play with other children at all.
Mr W said he had absolutely no recollection of a day when he was called three times to go down to see what was happening with the child. He recalled asking staff about it when he read Mr U’s statement and no one said that they had been trying to contact him. He denied ever saying anything like that alleged by Mr U about the child’s mother not caring and he also denied that the child’s mother was a person who would not care about poor treatment of her son. Mr W said that Mr U had never complained to him about concerns that the child was being abused or mistreated at the school. Mr W had learned that Mr U was communicating concerns to the husband and had a conversation with Mr U about his obligations under the Departmental Code of Conduct that applied and that he should not be getting involved as he was with the child’s father.
Mr W conceded that Mr U had complained to the Education Department. Ethical Standards of the Department became involved and an investigation ensued. A Principal from another school and a Senior Guidance Officer from another school district came and interviewed Mr W. Mr U had asserted that Mr X of the Education Department, who he alleged was a good friend of Mr W’s had conducted an investigation and had “whitewashed” it. Mr W gave evidence that Mr X, who is his immediate supervisor, had not conducted the investigation and is not a friend of Mr W’s either. He acknowledged that if Mr U had seen Mr X and Mr W speaking on one of Mr X’s work visits to the school over time he may have formed the impression that the two men got on well. They did but they were not friends as such.
Mr W said that the Education Department enquiry had not resulted in any adverse outcome for him or the school and that he had been informed that there was no case for Mr W to answer.
Mr W acknowledged that he had received a letter by email from the husband that became Exhibit 17 in the trial. He said that was the first he heard of the allegations contained within it from the husband. He had received no prior communication about the contents of that letter from the husband or Ms R. He said he referred the letter directly to the Education Department and did not directly respond to it. I consider the content of the letter to be ill-advised, scandalous and totally unreasonable, regardless of how concerned the husband may have been about the things he had been told by Mr U. Just how it was that the husband and Ms R considered this an appropriate way to react to what they had heard is difficult for me to understand.
Mr W was cross-examined by the solicitor for the husband. Significantly, none of Mr U’s allegations were put to Mr W as representing the truth of the matter.
I had no cause to consider that Mr V and Mr W were not telling the truth or that they were acting pursuant to some conspiracy. Both witnesses impressed me as trying their very best to recall accurately events from the past. I had no sense that Mr W was the dishonest, corrupt, inhumane, uncaring individual that he would have to be if I was to accept Mr U’s evidence as true.
On the other hand, Mr U himself was a man who has had a fair share of misfortune in his life. He was abused himself over several years as a child. He suffered from a brain tumour that required surgery at or around the time of the events in which he got involved at the Special School. He apparently did not enjoy the confidence of the teachers at the school and was obviously disappointed when he did not get the extra work that he hoped to get with the wife as the child’s carer and also when he did not get what he wanted when he demanded that the child be removed from the school. It is rather curious that he then apparently focused his attention at being concerned for the child’s wellbeing. It is entirely possible that all of these unfortunate events led to his distortion of the truth. In any event, I accept that there was an investigation carried out and an outcome reached that does not support Mr U’s position.
I was not persuaded that Mr U’s evidence presented a reliable picture of just how the child was treated at the school or as to how his mother cared for him. I do not accept that the child was mistreated and abused at the school and I do not accept that the wife acquiesced in such mistreatment or that she did not care as to how the child was treated at the school. The nature of the relationship formed between the husband and Ms R and Mr U, and the way in which they simply accepted all that he reported to them, as well as the way they acted upon that information, supports the findings about their perceptions and attitudes that are so determinative in this matter.
What of the wife’s application for injunctions?
The wife does not just seek to have the husband’s application for orders that the child spend time with him dismissed, but she also seeks certain injunctions against the husband. She seeks that he be restrained from spending time with, seeking to spend time with or communicating by any means whatsoever with the child or via any other person, institution or organisation on his behalf, including via any school, care facility or other institution attended by the child. She seeks that he be restrained from instituting any application on any child-related issue without first obtaining the leave of the Court on an ex parte application. She seeks that he be restrained from contacting or attending upon any medical practitioner or health services provider for the child or from attending upon or contacting any Government body or office, tribunal or agency, concerning the child or the wife.
These are all extraordinarily wide-reaching injunctions sought by the wife. There is evidence that the husband and his current wife have certainly acted unilaterally in the past in deciding to go to the child’s school to spend time with him. However, there is no evidence that they have done that together since the occasion in October 2009 or alone since Ms R did it in 2010 or 2011. I do not consider it necessary to enjoin the husband from spending time with or seeking to spend time with the child or from communicating with or seeking to communicate with the child. An order that the child shall not spend any time with or communicate with the husband other than as agreed between the husband and the wife is all that I consider necessary in respect of this aspect of the matter.
I will make an order that the husband not harass, intimidate or threaten the wife, otherwise I consider that he may seek to communicate with her inappropriately with a view to eliciting her agreement to him seeing the child at some point in the future.
I do not intend to restrain the husband from instituting any application on any child-related issue without first obtaining the leave of the Court on an ex parte application. I do not consider that the evidence supports a finding that the husband has demonstrated that his right of access to the Court should be curtailed or restricted as sought by the wife in this way. I will not so order.
I will not enjoin the husband from contacting or attending upon medical practitioners or health services providers for the child. Again, the evidence does not persuade me that such an injunction is necessary in the best interests of the child. I would be surprised if the husband acts inappropriately in this respect in the future after this matter is concluded and these reasons published, but in any event, I expect any such medical practitioners likely to be quite capable of protecting their own interests and not in need of this sort of protection from this Court.
Similarly, I do not consider it appropriate to enjoin the husband from exercising his rights to attend upon or contact any Government body, office, tribunal or agency in respect of the child or the wife. Whether and why he would do that is clearly a matter for him. How any such body, office, tribunal or agency deals with any such attendance or contact is clearly a matter for them.
The property adjustment proceedings
The husband and the wife agreed that the interests in property to be considered in the property adjustment part of the proceedings are as follow:
The real property at I Street, Suburb B
Registered proprietors – husband and wife as tenants in common
as to 9/20 and 11/20 respectively value $380,000
The wife’s 1989 Toyota motor car value $200
The wife’s household furniture and contents value $3,250
The husband’s Sport L equipment value $500
They also agreed that the wife has a superannuation interest with J Super worth $112,341 and that the husband has a superannuation interest with G Super worth $44,700.
At the end of the trial, they remained in disagreement about just how the Court should deal with a number of matters in the consideration of the competing property adjustment applications. I have already touched on these issues in my outline of some relevant factual history, but they were:
(i)Whether or not a debt owed by them both to the wife’s parents and secured by registered mortgage over the Suburb B property should be taken into account;
(ii)Whether or not two other amounts said to be owed by the wife to the wife’s father in the amounts of $61,000 Fijian (agreed to be equal to AUD $36,310) and AUD $100,000 should be taken into account;
(iii)How expenditure by the wife of $170,000 that existed in a bank account at the time of the couple’s separation should be dealt with, if at all.
Is it just and equitable to make property adjustment orders at all?
Both parties seek property adjustment orders. In circumstances where they are registered as joint proprietors of a property in which they hold uneven interests as tenants in common and where they are jointly liable for a debt secured by a mortgage registered over that property and both seek adjustment orders to finalise their entwined financial affairs, I can only conclude that it is just and equitable to make property adjustment orders as between them.
In determining property adjustment orders that are appropriate and, in themselves, just and equitable, I must have regard to the matters listed in s 79(4) of the Act. These include the contributions made by the parties to a marriage (in various forms); the effect of any order on either party’s earning capacity; consideration of the matters to be taken into account under s 75(2) of the Act, so far as they are relevant; any orders already made under the Act; and any child support that has been provided, is to be provided or might be provided in the future for a child of the marriage.
The Full Court has, in the past, set out “the preferred approach to the determination of an application brought pursuant to s 79 of the Family Law Act”.[6] Since then the High Court decision in Stanford[7] was delivered but the Full Court has said that this “preferred approach” is still very much a useful and relevant exercise to “illuminate the path” to determining the appropriate, just and equitable property adjustment orders to make.[8]
[6]See Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39] and Coghlan and Coghlan (2005) FLC 93-220 at [22].
[7] (2012) 247 CLR 108.
[8] Bevan and Bevan [2013] FamCAFC 116.
This “preferred approach” is said to involve four interrelated steps: firstly, making findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing; secondly, identifying and assessing the contributions of the parties within the meaning of subsections (a), (b) and (c) of s 79(4) and determining the contributions-based entitlements of the parties expressed as a percentage of the net value of the property of the parties; thirdly, identifying and assessing the relevant matters referred to in subsections (d), (e), (f) and (g) of s 79(4) – including, because of s 79(4)(e), the matters that are relevant pursuant to s 75(2) – and determining the adjustment (if any) that should be made to the contributions-based entitlements of the parties established at step 2; and fourthly, considering the effect of those findings and determinations and resolving what order is just and equitable in all the circumstances.
It has never been mandatory to take this four-step approach and the discretion conferred upon the Court is a broad and “holistic” one.[9] It can equally be properly exercised in different ways, as long as legal principles, including those set out in s 79 of the Act itself, are followed and the reasons that are given make that clear. I am, however, satisfied that using the four interrelated steps just described is an appropriate way to determine the appropriate, just and equitable property adjustment orders to make in this case.
[9] Per Murphy J in Watson & Ling (2013) 49 Fam LR 303 at [13].
The value of the property the husband and the wife have interests in is $383,950 and they have superannuation interests worth $112,341 and $44,700, as already set out. The wife contended that the liability to the wife’s parents that is secured by a mortgage registered over the real property should be taken into account as a debt of the parties of $150,000, with that amount being deducted from the gross value of the real property to determine their net property interests.
The solicitor for the husband contended that it should not be taken into account. I understood his submission to be based on the assertion that the liability was meant to be paid back by the wife using the money that she had saved since they came to Australia that totalled around $170,000 at the time of their separation. The submission was made at the same time as a submission that if the debt of $150,000, that the husband accepted has not been paid back to date, is to be included as a debt of the husband and the wife then the full amount of $170,000 that was held in savings at separation, which has since been spent by the wife on her legal costs in these proceedings, should be notionally added back to the property interests of the parties and considered part of the “pool” against which adjustment orders are to be made.
This Court cannot ignore the legitimate interests of third parties in the property of the parties to property adjustment proceedings, including those arising out of contractual arrangements that give rise to secured debts.[10] Interestingly, although the loan documentation that the husband put into evidence included details of the interest that would be payable on the $150,000 loan, the wife only contends for the principal amount of $150,000 to be taken into account. That fact, along with the oral evidence of the wife’s father as to his expectations for repayment when his daughter can afford it, certainly point towards the prospect that this very generous man may yet forgive his daughter the obligation of repayment. However, as it is a debt secured by registered mortgage I consider it entirely appropriate to take it into account in determining the net property interests of the parties in these property adjustment proceedings and I intend to do so.
[10]See Ascot Investments Pty Ltd v Harper & Anor (1981)148 CLR 337 per Gibbs J (as he then was) at p 355 and also Biltoft and Biltoft (1995) FLC 92-614 at p 82,124.
As I have already said, the husband’s solicitor submitted that if I do that I should also notionally add back the sum of $170,000 that the wife spent post-separation on her legal costs in these proceedings that she sourced from the savings she had put aside intended for repayment of her father. He did not make the submission with any reference to Chorn & Hopkins (2004) FLC 93-204 or any other of the numerous authoritative decisions about “add backs”. The plainly simple submission was that as the money was saved by the wife to repay the debt to her father, it should be included as notional property of the parties if the debt to the father of $150,000 is taken into account.
However, notionally including or “adding back” amounts to the parties’ net interests in property and superannuation in order to determine a “pool” that is considered throughout the balance of the process of determining property adjustment orders has been authoritatively considered to be the exception, rather than the rule.[11] The Full Court in Chorn & Hopkins acknowledged that the treatment of funds used to pay legal costs prior to trial is ultimately a matter for the discretion of the trial Judge but that regard should be had to the source of the funds used to pay legal fees in determining how to exercise that discretion. The Full Court certainly did make a point of distinction as to how the discretion should be exercised depending upon whether the funds used existed at separation of the parties or were generated by a party post-separation from his or her own endeavours or received by way of gift or inheritance, saying, in respect of the latter, that the money spent on legal fees would generally not be added back as a notional asset.
[11]See Farnell & Farnell [1995] FamCA 140; DJM & JLM [1998] FamCA 97; Chorn & Hopkins (2004) FLC 93-204; Omacini & Omacini (2005) FLC 93-218.
Relevant to consideration of the issue in this particular case is the further passage at the end of [58] in Chorn & Hopkins, where the Full Court say that:
Funds generated from assets…to which the other party made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
Of further importance, though, is the fact that since the High Court’s decision in Stanford, the discretionary treatment of what are generically described as “add backs”, has been discussed by a few of my judicial colleagues on this Court.[12] Young J proffered the view that the decision in Stanford would likely “ensure a change in approach” to the way in which the issue of “add backs” is dealt with. Murphy J in Bowe & Bateman [2013] FamCA 253 observed that the principles relating to “add backs” “may need to be examined in light of the decision of the High Court in Stanford”.
[12]See Watson & Ling [2013] FamCA 57 and Bowe & Bateman [2013] FamCA 253 per Murphy J and Sebastian & Sebastian (No5) [2013] FamCA 191 per Young J; see also what the Full Court said about the issue in Bevan & Bevan [2013] FamCAFC 116.After those single Judge decisions, in Bevan & Bevan, the Full Court said, at [79], that it is important to deal with this question of “adding back” notional property carefully, recognising that the money or property no longer exists but that its disposal forms a potentially important part of the history of the marriage. The Full Court acknowledged that s 79(4), and in particular s 75(2)(o) gives “ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property”. I observe, however, that the Full Court did not say that the issue could not be dealt with as it has been in the past, prior to the decision in Stanford.
In this case, counsel for the wife submits that there should be no notional “add back” of the $170,000 spent on legal costs by the wife from the savings that existed at separation because the wife has spent that money securing legal representation defending the husband’s unmeritorious applications.
With respect, that to me is more of an argument going to an application for costs orders pursuant to s 117 at the end of the proceedings. I am more inclined to find that the expenditure by the wife of that sum of $170,000 that was saved by the parties to repay the wife’s father’s loan was a dissipation by one of the parties of property that would otherwise have been available to be made subject to property adjustment orders. I consider it entirely appropriate to notionally include it with the net property interests and superannuation interests of the parties when undertaking the balance of the process of determining appropriate property adjustment orders. That is what I will do.
What of the other two debts?
The solicitor for the husband submitted that the other two debts of the wife to her father of $36,310 and $100,000 should not be taken into account as debts that reduce the net property interests of the parties. He advanced a number of alternative arguments in support of that principal submission. Firstly, he submitted that there was no evidence of any intention to create legal relations as between the wife and her father and therefore, on simple contractual principles, there was no obligation on the part of the wife to repay the alleged debts. Secondly, he submitted that the provisions of s 10 of the Limitation of Actions Act 1974 (Qld) (“LAA”) provided a bar to the recovery of the debts as more than six years had expired from the date on which the causes of action arose. Finally, he submitted that the Court could be satisfied that the wife’s father would never actually require repayment of these particular debts from his daughter and that a proper exercise of discretion would see these debts not taken into account.
As to the first of the alternative submissions, I respectfully reject it. The wife and her father gave evidence that over a period of time leading up to December 1994 the wife borrowed varying amounts of money from her father, each time agreeing to repay the money to him. The evidence was that in or around December 1994, the wife and her father considered it appropriate to document in writing their agreement that at that time a total of Fijian $61,000 had been advanced to the wife by her father and that it was to be repaid. A copy of that document was put into evidence by the husband. It was only signed by the wife but I accept her father’s evidence that he knew of it and relied upon it as evidencing a binding obligation on his daughter.
Very similar evidence was given with respect to further loans after that date that by July 2002 the wife and her father agreed totalled AUD $100,000 and which, again, they documented. A copy of that document was also put into evidence by the husband. Again, it was only signed by the wife but again I accept her father’s evidence that he was aware of it and relied upon it as evidencing a binding obligation on his daughter.
Whilst I accept that the wife’s father gave oral evidence that he does not expect his daughter to repay any of the money owing to him under those agreements until she can afford to, I do not accept the submission that there is no evidence that the parties intended to create legal relations as between the two of them in respect of these matters. I accept that they did intend to create a legal obligation on the part of the wife to repay that money to her father.
The second alternative argument requires further discussion. Both of the loans documented by the 1994 and 2002 agreements include provision for the amount borrowed by the wife from her father to be repayable upon demand. There was no dispute between the parties that pursuant to a line of settled authority a loan repayable on demand is one that gives rise to an instantaneous cause of action. Accordingly, the six-year limitation period provided for in s 10(1) of the LAA runs from the date of advance and actions to recover the two loans would be out of time. This is the basis of the submission for the husband that the two debts said to be owed by the wife to the wife’s father are no longer debts that are payable as they are not recoverable by the wife’s father.
For the wife though it was submitted s 10(1) of the LAA merely creates a statutory defence that the wife can take advantage of if she wishes to rely on it to avoid repaying the debts to her father. Counsel for the wife submitted that the wife acknowledges the existence of the debts and the obligations to repay them and does not seek to rely upon the statutory defence. He submitted that unless the defence is pleaded by the debtor as a bar to recovery, the debt must be considered as repayable. Alternatively, counsel for the wife submitted that s 35(3) of the LAA applies with the limitation argument being overcome by the wife’s acknowledgment of the liabilities.
Under the heading “Fresh accrual of action on acknowledgment or part payment” s 35(3) provides, relevantly:
Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, … and the person liable … therefor acknowledges the claim or makes a payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgement of the last payment.
Counsel for the wife submitted that the wife in her affidavit material (filed within the last six years) and her oral evidence acknowledged the liability for both debts to her father and therefore his right to recover the debts is, pursuant to this provision, deemed to have accrued on and not before the date of her acknowledgment. The wife certainly did complete a balance sheet filed on 10 August 2011 which is also exhibited to her affidavit filed 28 February 2014 in which she set out that she owed these two debts to her father. I accept that as an acknowledgment of the existence of the debts. I am satisfied that s 35(3) of the LAA applies to this acknowledgment of the debts and that there has been a fresh accrual of the wife’s father’s rights of action in respect to both debts such that the limitation argument is not available to the husband in respect of them.
However, in the circumstances of this case I am satisfied that the third alternative limb of the submission made by the husband’s solicitor is sound. In Biltoft at p 82,127 the Full Court acknowledged that the Court may properly determine not to take into account an unsecured liability in certain circumstances. Those circumstances it listed included where the liability is vague or uncertain, where it is unlikely to be enforced or if it was unreasonably incurred.
These two debts said to be owed to the wife’s father are unsecured. I am quite satisfied having seen and heard the wife’s father give his evidence and bearing in mind the years that have passed since the money was advanced to the wife, that both of the debts are unlikely to be enforced by the wife’s father. He said he would not seek repayment before the wife could afford it. I do not expect that is likely to come in the near future and probably not in the wife’s father’s lifetime. I do not see the wife’s father pursuing the matter with any enforcement action.
Of course, as I indicated during the course of the trial and the oral submissions, deciding not to include the amounts as debts in determining the net property interests of the parties does not preclude the provision of the funds by the wife’s father from being properly taken into account as financial contributions made on the wife’s behalf pursuant to s 79(4) at the second step of the four-step process already described by me. That is what I intend to do.
Accordingly, I consider that the net property interests, superannuation interests and the amount of expended savings notionally added back to this “pool” gives a total of $560,991.
What of the contributions assessment?
For the husband, it was submitted that the contributions of the parties across all spheres would be assessed as equal up to the point of separation in July 2008. I cannot accept that submission. In fact, as I indicated to the solicitor for the husband at the time, I consider it to be a submission made by a solicitor intent on having his client hear what the solicitor thought the client wanted to hear as opposed to one that was made in proper discharge of the solicitor’s duty to assist the Court.
The parties were together as a couple for many years before their child was born, nearly 10 of those after they married. In that time, the wife earned more income than the husband. For 13 years in Fiji the couple lived in properties owned by the wife’s parents. They lived in those properties rent free and with the cost of utilities connected to those properties paid for by the wife’s family. They had the benefit of gardeners and handy workers, paid for by the wife’s family, doing work at those properties. They had the benefit of the wife having a motor car for her use provided by her family. During much of this time, the husband was vigorously pursuing his Sport L interests and I accept the wife’s evidence that she contributed more to the wellbeing of their marriage relationship during that period than did the husband.
They had the benefit of the amount advanced to the wife by her father evidenced by the 1994 loan document that I have not taken off the value of the “pool” being considered. The parties agreed that was equal to AUD $36,310. They also had the benefit of the amount of AUD $100,000 advanced to the wife by her father evidenced by the 2002 loan document that has also not been taken off the value of the “pool”.
Even after they came to Australia, I am satisfied that the wife earned more income than did the husband in the period prior to their separation. At the same time, I do not find that the husband made greater contributions to the care of their child than the wife did so as to provide some balance to the contributions assessment.
They also have had the benefit of the $150,000 loan that has not been repaid at this point in time and upon which no interest is taken into account, although the $150,000 has been taken into account by deducting it from the value of the real property of the parties.
Quite clearly, properly considered, the contributions of the parties cannot be assessed as being of equal weight to the date of their separation.
Furthermore, their superannuation interests have only accrued since they arrived in Australia in 2003. That is over a period of approximately 11 years, about 5 of which they were still living together. The husband has also not been working for the last year and therefore not contributing to his superannuation interest as the wife clearly has been in that same period. The wife’s superannuation interest is significantly greater than the husband’s. I expect that is reflective of greater contribution based on her higher income, contribution over the course of an extra year all together and very good investment decisions and the strategy being adopted by the fund managers.
In addition, the wife has solely cared for their very high needs child since separation. That alone is a contribution by her that is unmatched by the husband for which the solicitor for the husband was prepared to concede an extra 10 per cent weighting in favour of the wife in the contributions assessment process.
I consider that there is a substantial imbalance in all of the contributions of the parties in this case in favour of the wife. In making the leap from qualitative to quantitative assessment, I consider that a 75/25 per cent assessment in favour of the wife appropriately reflects that substantial imbalance.
Is there a need for any further adjustment?
I am readily satisfied that there is a need for a further adjustment having regard to the matters set out in s 79(4)(d)-(g) of the Act, including the matters set out in s 75(2), in so far as they are relevant.
The most determinative of these matters is the fact the wife will have the responsibility of caring for the child of the marriage for years to come. I am quite satisfied that her responsibility to care for him, financially, practically and emotionally will not simply cease when he turns 18 years of age. His autism is so profound that he requires round the clock care and that is unlikely to change upon his turning 18 years of age. It is likely to continue for many years after that. The wife has demonstrated a capacity and a willingness to continue to meet that responsibility. The likely consequential impact upon the wife’s independent lifestyle and future financial circumstances is significant. At the same time, the husband’s independent lifestyle will be unrestricted.
The extent to which the wife can expect to get any real financial assistance from the husband in the future is difficult to readily assess. He did meet assessed child support liabilities for around four years after separation despite having appealed departure determinations to the SSAT and also to the Federal Magistrates Court (as the Federal Circuit Court then was). However, he then gave up the job he had held for several years and has not been in paid employment for the last 12 months. He gave evidence, without producing any form of reliable corroborative evidence, that he has earned between $5,000 to $7,000 in total income before expenses by a business of buying, refurbishing, selling and maintaining second-hand office equipment. He asserted an intention to remain engaged in this enterprise for the foreseeable future, with the hope that he can build it into a more viable business. He further asserted an intention to meet his obligation to financially assist the wife in providing for their child, yet then went straight on to assert that he will be seeking to have his child support liability reassessed downwards to more properly reflect his income in the near future. He has not even paid the minimum monthly payment of $30 towards his child support liability since December 2013. At the trial though, he did, however, indicate a willingness to consent to funds from any property adjustment made in his favour being directed to the CSA in discharge of his current outstanding liability of $12,209.11.
I am reasonably satisfied that the difficulties that have confronted the wife in respect to receiving child support over the last 12 months are likely to confront the wife moving forward, even after any current outstanding arrears are discharged out of the husband’s property adjustment entitlements. I am quite satisfied that the husband will take steps to minimise his liability for child support as much as he can in the future and am satisfied that giving up his job early last year is an example of such behaviour. I do not accept that it was an unavoidable event dictated by poor health.
I am also satisfied that the husband is not exercising the actual earning capacity that he truly does have. He voluntarily gave up his job in which he was earning around $35,000 to $45,000 per annum and although he initially asserted that he had applied for a number of jobs in the period since then, after being pressed in cross-examination on the point he conceded he had only applied for one job, that he had obtained it and held it for a week before he gave that up as well.
Against that, I accept the wife’s earning capacity is greater than the husband’s, both at this present time and in the foreseeable future. She has tertiary qualifications and has demonstrated an industrious commitment to work. She is likely to continue earning more than the husband in the future, both in income and superannuation.
The husband has re-partnered and thereby obtains the financial advantages that come with the sharing of some living expenses when a couple is living together. The wife has not re-partnered.
The Full Court has said that “it is the real impact in money terms which is ultimately the critical issue” when any adjustment at this step of the process is being considered.[13] A 10 per cent adjustment in the wife’s favour would only result in her receiving an additional $56,000 of the “pool”. I do not consider that sufficient to reflect a just and equitable consideration of all of the relevant factors. A 15 per cent adjustment would be equal to $84,000. I consider that to reflect an adjustment that is just and equitable.
[13]Clauson and Clauson (1995) FLC 92-595
Accordingly, a division of the pool as to 90 per cent to the wife and 10 per cent to the husband is, ultimately, one that I consider appropriate in the very particular circumstances of this case.
What orders should be made?
The husband’s superannuation interest is worth $44,700. He has Sport L equipment worth $500 and, no doubt, some other personal property in his possession. He also has a liability to the CSA of $12,209.11 and he indicated a willingness to have that discharged from any property adjustment in his favour.
I am satisfied that it is just and equitable to order that the husband retain as his the Sport L equipment and any other personal property he has in his possession, that he retain his superannuation interest and that the wife pay to him within 30 days of the date of the orders being made the sum of $12,209.11 by way of payment on the husband’s behalf to the CSA towards his child support liability. In addition, the husband shall transfer all of his right, title and interest in the Suburb B property to the wife and the wife shall cause the discharge of the mortgage for which she and the husband are jointly liable, indemnifying the husband against any liability in respect of any debt owing to the wife’s father. Of course, in the event that the wife is unable to cause that mortgage to be discharged so that the husband is released from any and all liability for the debt it secures, the property will have to be sold and the mortgage discharged from the proceeds of sale. I have every expectation that the wife will, with the co-operation of her father, be readily able to secure the discharge of that mortgage.
I will make the orders that are set out at the outset of these reasons and I consider them to be just and equitable.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 March 2014.
Associate:
Date: 28 March 2014
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