REDWOOD & DELACEY
[2020] FCCA 2612
•23 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REDWOOD & DELACEY | [2020] FCCA 2612 |
| Catchwords: FAMILY LAW – Property – parties only in relationship for about 4 years – wife seeking to excise all pre-relationship assets – husband obsessed with wife’s alleged overspending and siphoning off of funds – both sides keenly attuned to financial gain – pre-relationship assets excluded from pool but relevant as s.75(2)(o) matters – husband’s significant contributions to matrimonial home – contributions assessed 55/45 in favour of husband – future needs equal – 55/45 division just and equitable. |
| Legislation: Family Law Act 1975 (Cth), ss.75, 60CC Child Support (Assessment) Act 1989 (Cth) s.124 |
| Cases cited: Goode v Goode [2006] FamCA 1346 Stanford and Stanford (2012) 247 CLR 108 |
| Applicant: | MS REDWOOD |
| Respondent: | MR DELACEY |
| File Number: | DGC 2126 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 24 & 25 August 2020 |
| Date of Last Submission: | 25 August 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 23 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Conlan |
| Solicitors for the Applicant: | Sterling Walters Lawyers |
| Counsel for the Respondent: | Not Applicable |
| Solicitors for the Respondent: | Self-Represented |
| Counsel for the Independent Children's Lawyer: | Mr Tesoriero |
| Solicitors for the Independent Children's Lawyer: | Wilkinson and Associates |
ORDERS
PARENTING
That the husband and wife have equal shared parental responsibility for the child X born in 2016 (the child).
That the child live with the wife.
That the child spend time with the husband at the following times:
(a)Commencing 28 August 2020 each alternate weekend from 5.00pm Friday until 5.00pm Sunday;
(b)Commencing 13 November 2020 each alternate weekend from 5.00pm on Friday until the start of childcare or kinder on Monday and each alternate weekend thereafter;
(c)Each Wednesday from 12.00noon, or the conclusion of school or childcare (whichever is the latter) until the commencement of childcare or school on Thursday;
(d)From 12.00noon Christmas Eve until 3.00pm Christmas Day in even numbered years and from 3.00pm Christmas Day until 6.00pm Boxing Day in odd numbered years;
(e)From 5.00pm the Saturday before Father’s Day until the commencement of school or kinder on the Monday after Father’s Day;
(f)as otherwise agreed in writing between the parties in writing, including SMS.
That upon the child commencing school in 2022:
(a)the child spend time with the husband for half of all term holiday periods as agreed but failing agreement for the first half;
(b)The child spend time with the Father for half of the long summer holiday period by agreement but failing agreement on a week-about basis until the child is 8 years old and thereafter either as agreed or for the first half in odd numbered years and the second half in even numbered years;
(c)All changeovers for the school holidays are to take place on the relevant Saturday at 5.00pm
That the husband’s time with the child be suspended and the child return to the Mother as follows:
(a)from 12 noon Christmas Eve until 3.00pm Christmas Day in odd numbered years and from 3.00pm Christmas Day until 6.00pm Boxing Day in even numbered years;
(b)from 5.00pm the Saturday before Mother’s Day until the commencement of school or kinder the following Monday;
(c)for a period of two consecutive weeks over the long summer holidays, when the child is at school, or between December and February before the child starts school, with the wife to provide the husband with 6 weeks’ notice as to the dates on which she wishes to spend this time with X; and
(d)as otherwise agreed in writing.
That the parties be restrained from consuming alcohol so that either party has blood alcohol level above .05, or being under the influence of, or consuming, any non-prescribed prescription medication, illicit substance or synthetic marijuana or any synthetic cannaboid while the child is in their care.
The Father purchase both a BACTrack device (“the BACTrack’) and a subscription to the relevant BACTrack App forthwith, and by no later than 30 September 2020, and the combination purchased must enable the Father to undertake BAC testing while a photograph is simultaneously taken of the Father undertaking the test with the test results and the photograph to be uploaded to the App.
The Father will do all acts and things to ensure the Mother receives notifications from the BACTrack App to her mobile telephone.
The Father undertake testing (“the testing”) with the BACTrack and corresponding App each morning upon rising, but no later than 9.00am, each morning and at 8.00pm each night that X is in his care during any time described at paragraphs 3 and 4 above for a period of not less than 6 months from the date the first reading is provided to the Mother, unless otherwise agreed between the parents.
The Father meet the cost of the BACTRack device and App subscription.
The parties commence therapeutic family counselling as soon as practicable with Dr B, Ms C, Ms D or another similarly qualified practitioner in 2021 to assist the parents to build a cooperative parenting relationship and reach agreement about the child’s future school enrolment.
At the start of 2023 the parties consider whether it is in X’s best interests for the parents to have shared care of X, or for the Father’s time with X to be increased, and engage the counsellor described at paragraph 11 above to assist the parties to reach an agreement in this regard.
The Wife ensure that the Father is listed as a contact person on any enrolment forms for medical treatment for X or any school or kinder X might attend and specifically authorise the husband to speak to any practitioner, childcare worker or teacher directly about X.
Both parties advise the other in the event X is injured in their care and that injury requires medical treatment they are to inform the other party as soon as practicable and provide the details of that treating practitioner.
The parents are restrained by injunction from discussing these proceedings with X, including showing the child any of the documents filed by either parent in the proceedings or discussing with the child the contents of any report prepared in this matter.
PROPERTY
That the Respondent husband pay to the wife $224,650 within 30 days of these orders being made.
That in the event that the whole of the payment in Order 16 has not been made within 30 days, the real property be forthwith sold altogether out of Court (“the sale”) pursuant to orders 18 to 21 inclusive.
The parties shall forthwith do all such acts and things and sign all such documents as may be required to put the real property situated at E Street, Suburb F, Vic on the market for sale by private treaty with a licensed estate agent to be nominated by the president of the REIV with the reserve price to be nominated by the agent.
That the parties equally share the costs of marketing and sale for the real property.
Upon the settlement of the sale of the real property, the proceeds of sale will be applied:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Second, to discharge the mortgage and any other encumbrance affecting the real property;
(c)Thirdly, to pay all outstanding council rates, water charges and fees; and
(d)Fourth, the balance be divided between the parties so that the husband receives 55 per cent of the property pool and the wife 45 per cent in accordance with the Court’s judgment at paragraph 130, with the pool adjusted to reflect the actual net proceeds of sale.
Pending the sale:
(a)The Respondent have the sole right to occupy the property;
(b)The parties hold their respective interests in the real property upon trust pursuant to these orders;
(c)The parties be equally liable for the maintenance of the property including mortgage, council rates, water charges and fees associated with the property; and
(d)Neither party shall further encumber the real property without the consent in writing of the other party
The parties have liberty to apply in respect of implementation of these orders.
Any Application for costs supported by written submissions of not more than 3 pages to be filed and served with on or before 7 October 2020.
Any written submissions in reply of not more than 3 pages to be filed and served on 21 October 2020.
The matter be determined on the papers unless otherwise ordered.
IT IS NOTED that publication of this judgment under the pseudonym Redwood & Delacey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SUBURB N |
DGC 2126 of 2019
| MS REDWOOD |
Applicant
And
| MR DELACEY |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting and property dispute which has been significantly skewed by the considerable preoccupation of both of the parents with their financial dispute. One might have hoped that the parties’ energies would have been most focused upon their child, X, born in 2016, but although I have no doubt that both these parents love X, in truth, their primary energies in this proceeding have been directed to their arguments about money.
X lives with his mother (I will refer to the parties as mother and wife or father and husband as the context takes me), and the mother proposes that the father spend time with X on three nights per fortnight. The father seeks an equal time regime. The Independent Children’s Lawyer proposes a 10/4 arrangement moving ultimately to 9/5. For the reasons that follow I will be making the orders sought by the Independent Children’s Lawyer.
So far as property is concerned, the wife seeks the exclusion of all property owned by her before the commencement of the proceedings from the property pool. She seeks a 70/30 division of the remainder in her favour. The husband’s position is a little bit difficult to calibrate. He has asserted on various occasions that he seeks “to be brought back to a financial position prior to commencement of proceedings” and that “both parties keep their initial contributions” and “an equal distribution of assets post-remove of initial contributions” (these are the matters indicated in his outline of case document). What these mean in real terms is difficult to evaluate because the husband is obsessed with what he sees as (in effect) the mother extracting hundreds of thousands of dollars to her own benefit out of the parties’ joint resources during the marriage.
The wife also seeks an adjustment pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth) to compel the father to pay half of all ancillary expenses related to X in the nature of school, education, medical care and other matters. This is opposed by the husband.
I think both these parties are unduly greedy. While I accept that the wife’s pre-relationship assets should be excluded from the pool in the strict sense, they are plainly a significant, relevant matter pursuant to section 75(2)(o) of the Act. I am going to order that the assets garnered during the parties’ relationship be divided55/45 per cent in favour of the husband.
Agreed or Uncontroversial Matters
The mother was born in 1984 in Country G. Her parents were from Country H. They moved to Country J in 1984 and to Australia in 1990. The mother is a qualified professional and is presently employed (albeit recently) as a professional with Employer K with a salary of $150,000 plus superannuation.
The husband was born in 1982 and is a professional. He was born in Country L and is the fifth of five sons. He lost his father when very young and his mother when he was 18 and has also lost one of his brothers in 2011. He is employed by the Employer M as a professional, having commenced employment in 2019 and been significantly promoted since. His income exceeds $100,000.
It appears that the parents met on an aeroplane in 2011 and commenced dating in 2013. Cohabitation seems to have commenced in late 2014 and they married in 2016. As earlier indicated, X was born in 2016.
They separated in December 2018 following which the father remained in possession of the former matrimonial home in Suburb F and the mother moved to a previously owned investment property she had in Suburb N, where she continues to reside with X.
The father’s time with X has had its ups and downs but presently consists of three nights a fortnight, being each Wednesday night and alternate Friday to Saturday nights.
The wife bought her property in Suburb N in 2010 and I may have missed it in the parties’ all too extensive materials but the exact details of the purchase price and the mortgage upon it do not emerge with any great clarity. The father has asserted a purchase price of $300,000 in 2012 (paragraph 77, first affidavit). In her case outline the mother asserts that she had assets of $369,000 when the relationship commenced consisting of her equity in the Suburb N property and motor vehicle, share portfolio, savings and superannuation entitlements.
She contrasts this with an asserted $264,900 consisting of the husband’s motorbike, bank accounts and superannuation.
It is common cause that the matrimonial home in Suburb F was purchased for $667,000 with a mortgage of $500,000 in June 2015. There seems to be no material challenge to the husband’s assertion that he contributed a total of some $210,000 by way of $180,000 towards the purchase price and $30,000 towards the stamp duty.
The husband subsequently in 2016 inherited some $78,000 which was applied to the mortgage in the matrimonial home.
The Parties’ Affidavits
Much of what the parties have to say in their frequently repetitive affidavit material is paraphrased in the agreed matters above. There is more, much more, indeed all too much more, in the parties’ affidavits. I do not propose to traverse these prolix documents in any detail whatsoever. They are full of self-serving material in any event. Put broadly, but I believe sufficiently accurately, it can be said that the wife’s affidavits insofar as they deal with parenting matters, touch very heavily upon the asserted difficulties that the father has had with alcohol and drugs and its concomitant and inevitable effects on the father’s capacity safely to care for X. So far as property matters are concerned, the wife’s material seeks to extoll her own financial contributions and to respond to the husband’s repeated assertions that, in effect, she stole from him during the relationship by extracting funds either to her family or more particularly, to herself.
The husband’s material can likewise be characterised in the main as responses seeking to refute the mother’s assertions as to his alcohol abuse and drug use. His position, broadly put, is that he is simply a social drinker. He concedes having become depressed for a while during the relationship. He maintains that he is now of sound health. He goes to great lengths to set out in some detail alleged extraction of funds by the wife whom he accuses in the most lurid terms of thoroughly mendacious and repellent behaviour.
Both parties have condescended to considerable, one might even say minute, detail about alleged financial contributions (whether positive or negative). There is more than a hint that the court should conduct its own forensic accounting assessment. Not only do I not possess the necessary applicable skills, but that is not the court’s task, which is so produce an outcome that is just and equitable having regard to all relevant circumstances.
This brief paraphrase, in my view, does more than enough to cover the parties’ affidavit materials. Reading these affidavits, and I should make it clear that I have indeed read and re-read them and have regard to them, is a dispiriting experience indeed. It is far more profitable in these particular circumstances to concentrate on what they said at court.
The Family Report
Before coming, however, to the matters given at court, I propose to traverse the family report of Dr O.
Dr O’s report is appended to her affidavit affirmed 11 December 2019. The report commenced with the terms of reference and current arrangements. I note that the mother was living with her brother and X in Suburb N, working full time Monday to Friday with X attending Suburb N Day Nursery on those days. The report noted that the father’s hours of work are flexible which usually enables him to be home in time to pick up X at 5 pm. The report noted that the orders then in place were for the father to spend time each alternate Friday until Sunday and each Wednesday overnight with changeover at Suburb P.
The report noted the relevant family background including the mother’s concerns as to the father’s mental health and drug use. Interestingly, given the parties’ mutual criticisms, the report noted at paragraph 19 that the parties agreed there should be equal shared parental responsibility. The dispute was about how much time with each parent. The mother was proposing 10/4 and the father was proposing moving towards an equal shared time arrangement.
Dr O traversed the risk factors and noted that the mother had obtained an intervention order against the father in August 2019 due to his actions of sending aggressive, abusive messages, contacting her family and friends to inform them that she had stolen money from him and making inappropriate references to her on social media (paragraph 44).
She noted that the father admitted that there had been occasions post-separation where he had sent Ms Redwood inappropriate text messages of a bitter nature (paragraph 58).
She noted the father’s admitted use of synthetic cannabis (paragraph 63). She noted the results of hair follicle testing in October 2019 which indicated the father’s alcohol consumption was excessive although she noted the father disputed the results but had subsequently become abstinent.
The report noted, in my view correctly, at paragraph 73:
There have been occasions when the parties have not necessarily had X’s best interests at the forefront of their minds. This includes allowing the financial dispute and conflict regarding property (e.g. the USB/hard drive) to take precedence, as well as failing to adhere to pre-arranged plans based on each parent’s own views or desire to spend more time with X.
Nonetheless, the report went on to say at paragraph 75:
The report writer is optimistic that with professional assistance, the parties can establish and maintain a civil, productive and co-parenting dynamic in future. Doing so promotes positive role modelling of adult relationships for X post-separation. This is particularly important given X’s young age and the number of years still ahead where the parties will need to work together for X’s benefit.
The report went on to note a clear bond between the father and X (paragraph 81) and noted a similarly clear bond with the mother at paragraph 86. The report also observed “she appeared to have a sound understanding and knowledge of how to respond to X when he was tired. This is consistent with her being X’s primary carer”.
The report traversed collateral information from Ms Q, an alcohol and drug counsellor that the father had consulted, the results from R Hair Analysis Drug Testing which showed a reading of 36.1 pg/mg denoting excessive consumption of alcohol. She noted that the GP, Dr S, had reported a lack of concerns as to underlying mental health diagnoses or conditions for the father not only in his presentation to her but in the evaluation of Dr T (paragraph 100).
The report went on to say again at paragraph 105:
It was evident that one of the key issues for the parties aside from the care arrangements pertained to the finances and property. This was evident in the claims of financial abuse alleged by each party. Both parties remarked that they would like to reside at the former family home in Suburb F. Further, whilst Ms Redwood denied that it was her intention, her actions at times with regards to refusing Mr Delacey time with X had been in response to matters such as the return of a USB drive. Mr Delacey has also evinced strong views that Ms Redwood “stole” money from him during the relationship.
The parties need to find a way to move past these issues for X’s sake. It is hoped that finalising the financial dispute may assist with this process…
The report continued at paragraph 109:
With regards to Mr Delacey’s proposal for equal shared care, this appears premature given the parties’ difficulties communicating with one another at present. Equal shared care works best when the parties are able to effectively communicate with one another. The current relationship does not suggest that this has been the case to date. Thus, the risk of moving to such an arrangement is that X will be placed in the middle of the conflict, which as mentioned earlier can have a detrimental impact on the child.
At paragraph 113 the report went on:
It is difficult to ascertain whether placing restraints on his use through a court order would be sufficient in mitigating the potential risk given Mr Delacey did not demonstrate insight as to the impact of his behaviour or acknowledge that his drinking constituted a problem. Such lack of insight poses a barrier to treatment due to a lack of motivation to change and to address the underlying cause of his drinking. However, that Mr Delacey reported having ceased consuming alcohol following receipt of the hair follicle testing results could be considered positive, if accurate, in terms of demonstrating his capacity to abstain. Whilst abstinence is a useful indicator in risk reduction, it would be important for Mr Delacey to also address the underlying cause and develop strategies to manage the risk of lapse and relapse in the future.
The report went on to note the difficulties of assessing the father’s use of synthetic cannabis as the only available data was his own self-report (paragraph 114). The report suggested further hair follicle testing through R Labs would be helpful to test for synthetic cannabis.
Paragraphs 116-117, the report went on to observe:
Whilst concerns have been raised about Mr Delacey’s mental health, the available information suggests it is unlikely to be a prominent issue. It is noted that the report writer was unable to view the psychiatric evaluation conducted earlier this year. It is Mr Delacey’s position that this evaluation did not result in any psychiatric diagnoses. This was consistent with the information provided by his general practitioner, Dr S. In support of this, Mr Delacey’s presentation at interview did not suggest there were any immediate concerns in relation to his mental health that required further investigation. However, he did present as somewhat fixated on the finances and Ms Redwood’s alleged actions of stealing money from him. It would be useful for the court to have access to the evaluation of Dr T to confirm the absence of psychiatric condition.
Although Mr Delacey’s time with X appears to have progressed well without any incidents, the ambiguity regarding the level of risk posed by Mr Delacey in relation to substance use is of concern. That no incidents have occurred recently when X has been in his care is positive but does not necessarily ensure that no instance will occur in future if the risk issues are not sufficiently addressed. This is particularly pertinent given X’s young age, inability to self-protect and reliance on caregivers to attend to his needs and ensure his safety. As such, a cautious approach to spend time with Mr Delacey in the immediate future is warranted due to there being protective concerns for X.
The report went on to recommend, initially, daytime each weekend and one evening after childcare each week with no overnight time with a view to gradually increasing to include overnights once the risks were addressed.
The Submissions Made and Evidence Given at Court – the Opening and Evidence of the Mother
What follows is taken from my notes.
Counsel for the mother commenced her submissions by referring to the hair follicle tests. It was a four-year relationship involving a child, X, born in 2016. It was agreed that there should be equal shared parental responsibility.
There had been conflict since separation and an intervention order taken out against the husband. Counsel submitted that equal time was contraindicated and there was no need for therapeutic intervention. The mother was the primary carer. The father’s cannabis use and alcohol consumption were risks. The question was whether the drugs and alcohol affected the father’s parenting. If there was such risk, how should it be managed. Tests conducted by AWDTS in 2019 indicated excessive alcohol use. The father was tested for synthetic cannabis in December 2019 and this was negative. The father had refused to take tests in 2020. The second test was negative for alcohol even though the father was using alcohol. The risk remains. The father’s use of alcohol is chronic, and a conservative approach should be taken with minimal time for the father. The Independent Children’s Lawyer’s proposal for ongoing testing and mediation was opposed. The husband is litigious and confrontational. He has sued his previous lawyers and others. He did not comply with the testing regime. Past mediation had not been successful.
So far as property was concerned it was a short relationship. The parties kept their finances separate and it was appropriate that there should be a two pool approach. Pre-relationship assets should be quarantined which included the property in Suburb N, the parties’ superannuation, the husband’s motorbike and the wife’s shares and chattels. The second pool was composed of the property in Suburb F and cash and cars. The father’s initial contribution was greater, but both have contributed. The wife has said hers was the greater contribution. The husband was unemployed for 13 months and the child was still in childcare. The husband withdrew $150,000 from the mortgage during the relationship and after separation. He had major consumption of drugs and alcohol and two overseas trips. The mother was the primary carer and had paid out over $24,000 in childcare. The husband still uses the mortgages and his reserves. The husband has paid $2,772 in child support for X, a total of $35 a week and none since 2019. The husband was fixated on the idea that the wife had siphoned funds off and his discovery requirements were excessive. There should be an adjustment in favour of the wife. At the start of the relationship the husband’s earnings were greater but now the mother was better off. The husband paid $95,000 in legal fees from joint funds and these should be added back. The husband kept all the chattels even though the wife brought them in. He has not provided the chattels to the wife. The wife seeks $25,000 add-back in respect of chattels. She also seeks a departure order such that half of all expenses should be paid by the husband but not offset against his child support responsibilities. The wife was seeking a 60/40 split after add-backs.
The wife was called and adopted her financial statements and trial affidavits of 10 March 2020 and 10 August 2020 as true and correct.
The wife sought to tender a press report from a newspaper in Town U detailing an incident when the husband was allegedly refused permission to fly because he was drunk. This document was marked for identification and never formally tendered, but whether it particularly refers to the husband or not, it is clear that he was refused a flight in 2012 because he was drunk and aggressive to staff.
The Wife Under Cross-examination by Counsel for the Independent Children’s Lawyer
The wife was cross-examined about the outcome of prior mediation. She said she believed the father misled her by referring to equal shared parental responsibility. She was traumatised at the time and thought equal time would give the father an opportunity to get help. She appeared to qualify this and say it was possible to move to equal time over time. She was just very confused. The father said he would address his issues so they could move towards equal time. She now proposes 4 nights out of 14. When asked why this was so the mother said that at the time of separation she did not understand the extent of the father’s issues. She believed what he had told her during the relationship. She now realises this was untrue. She wanted to protect X because she is aware of the father’s problem drinking and she was aware of his use of cannabis after X was born. After the mediation she got hold of the transaction records and also friends had told her that the father was paranoid. Substance abuse had started earlier than she had known about. She only found out after the child was born. She had always put X first. She had not always behaved perfectly and had been emotional. The father promised to return a USB port. Her hardware had photographs and tax information. She took the father’s by mistake and he refused to return hers. She returned his and had told the father that he would not have any time until he returned the USB. She now proposes Friday to Saturday in one week and Wednesday to Thursday in the other week. She was concerned about the father’s capacity to manage his substance abuse. He can abstain for one to two days max. She had been scarred by the experiences she had had. It was put to her by counsel that her proposal suggested three consecutive nights during holidays. When asked whether she had proposed any increases at any point whatever, the mother said court proceedings have escalated matters between the parties. She was hopeful there would be better cooperation when the financial matters were settled. The father had been monitoring her finances throughout the proceedings and hopefully there would be less focus on finances. Counsel put to the mother that Dr O had recommended counselling and asked if she opposed this. The mother said they did try relationships counselling. It was found very difficult because of the father’s behaviour. She had such a difficult experience of counselling with Mr Delacey and was not sure that there should be more.
When it was put that she was only proposing nine nights in the long summer holidays which would provide no opportunity to travel the mother said this could progress later once they were past this initial hearing. The risk with the father is greater at nights and festive times. He is depressed in Christmas and January because of past trauma. She could accommodate extra time in January if he had family visiting him. He abstains in the company of others but when alone he spirals.
X had had night terrors when he was with the father after separation and then stopped. X was also aggressive at childcare during and after separation. This was because of parental acrimony. The father would come home drunk and yell at her and wake X. It was possible he could abstain for two nights, but the father does not acknowledge his problems. She does not want to take risks with X’s welfare. She had tried to have the father undertake hair follicle testing. He needs to acknowledge her concerns. When asked what the father could do to satisfy her concerns the mother said the father needs to acknowledge his problems and also undertake hair follicle testing. He refused to do the current test, presumably because he thought he would fail. Hair follicle testing would help allay her concerns. It is hard to request this when he contests the results.
Counsel put it to the Independent Children’s Lawyer was proposing breath tests. The mother said her concern was around acrimony of his passing the test. He used synthetic marijuana to avoid tests at his employer’s. She said if there was a rule he would find a way to get around it. She just wanted X to be safe in the father’s care. Once the case is over they can see if they can move forward. When asked about telephone time the mother said she could accommodate this when things were less acrimonious. She tried this at first when the father was overseas, but he was aggressive and upset at her. This could be looked at in the future, but X was a bit young at the moment.
I should then interpolate and say that this precis from my notes fails, perhaps, to give sufficient emphasis to the repeated references to financial matters that pervaded the mother’s evidence generally.
The Mother Under Cross-examination by the Father
The father cross-examined about the parenting plan signed following mediation. The mother said she signed it because she had been pressured to do so and that when she signed it she was not aware of the father’s substance abuse. She was working full time and caring for X. She recalled an oppression to sign and said to the father that he had refused to negotiate in a reasonable way. When it was put that that was not in her affidavits the mother did not directly answer although I should interpolate and say that the way the father put his questions struck me as being extremely domineering. The mother said she wanted to be able to move forward. She had tried to reason with him, but he was so hostile with his texts that she did not feel he could talk reasonably. He was sending harassing messages and was accusatory in social media. The father cross-examined about the family plan which had had no mention of alcohol. The mother said this was because the main issue was synthetic cannabis. Alcohol consumption went up later. Synthetic drugs were more damaging. There were a lot of cash transactions indicating alcohol purchases. She said the father had told her that he wished to kill himself when he was drunk. When asked why she had not inspected the document from the psychiatrist the mother said the psychologist report was provided. She thought it was very self-serving. The father had denied all his problems. When the father put it to her that he had had time on Friday to Saturday 6pm from January 2019 onwards the mother said that at the time of separation she was traumatised. She was not aware of the drug and alcohol use. There should be no drug use. She said, “I had to work because you were unemployed”. When it was put to her that he had had each weekend the mother said that he could abstain for short times when X was in his care, but he had got worse and worse. Overnight time stopped because she saw the transactions which were far more than she had suspected. This went to his honesty.
The father put it to her that his time had been reduced to 10 to 6 pm on Saturday and that he had wanted the child on Country L Day until 4 pm. The mother said she understood Father’s Day. He had never celebrated Country L Father’s Day. She did not believe it was a necessary addition. It had never been mentioned during the relationship. She said that the father kept X anyway and had him from 10 am and kept him until 4 pm.
When it was put that she cut time from 10 to 6 the mother said she became aware of the file. Then she Googled. This led to stores. These were disguised as adult stores. She couldn’t look at it because she was working hard and then she did and saw the extent of his drug use. When it was put that she had reduced the time to 10 to 6 and that the mother started court proceedings the mother said it was extremely acrimonious at the time. His testing was non-comprehensive.
The father (whose questions, perhaps understandably, tended to be rather over-lengthy and multifaceted) put questions to the mother about him being apologetic on New Years Eve when he got home from the new neighbours and his assertion that the wife attacked him. The mother said she was sober and he was drunk. She said, “You started yelling. You were punching holes in the walls. X was crying. You did not hit me. You broke my phone and I called the police”.
The mother confirmed that she graduated in 2007 in law and commerce. She worked for 18 months and then started at Employer V in 2010. She had bought Suburb N in 2010 for $300,000. The first home owner’s grant was $7,000 or $14,000. She had not saved the deposit but borrowed from her family. The mortgage was $240,000. She had about $30,000-$40,000 savings. It was put that the mortgage statement showed that by 2013 the mortgage was down to $135,000. The mother said that when she started with Employer V she was paid $65,000 as a graduate but got salary increases. She had worked hard to pay her parents back. She had been to her tax accountant and decided to make the investment and then rent it. It was a little bit difficult to follow the questions and answers at times but if I understood it correctly, the mother repaid her parents in 2013 the $50,000 that she had borrowed.
The mother did not recall this being a long distance relationship in 2013. They were just talking on the phone. They could never decide when the relationship started. She did not know where the husband had got the figure of $135,000 from but she had paid her parents back before she was in the relationship. She agreed that cohabitation started in 2014. They were renting and she was paying the bills. Her cost of living had increased when she started dating the husband.
It was put that between late 2014 and mid 2016 the wife was spending $1,033 a week. The wife said they spent a lot on holidays. They went to Country J and twice to Country W. They also bought furniture when they bought their home. After X’s birth she put all personal expenses on her personal credit card. X was born in 2016. She went on maternity leave, but he asked her to pay all expenses. She paid all the mortgage payments. Between April and December 2018 the husband was unemployed and not paying his half share of the mortgage. She paid for everything. She did not recall the husband’s calculations of monthly expenditure. There was body corporation and other expenses. They went to Country Y in 2018 for the father’s brother’s wedding. She had bought a vehicle in early 2019 and had renovated the bathroom at Suburb N. She was cross-examined about alleged expenditure of $9,000 a month but I have to confess I found the questions and answers equally difficult to construe. The mother said that she had a lifestyle change when separation took place. She had to relocate her job. There were tolls and parking. She said the figures put by the father did not make sense. Most of her money was spent on food and living expenses. She had bought a car and undertaken renovations and been to Country Y. The mortgage on Suburb N is $204,000 and its value is $590,000.
In re-examination the mother confirmed that she retained solicitors in early 2019. Her fees were significant and about $100,000 which she had paid out of income. The mortgage on Suburb N in 2014 was about $70,000 but the mother did not remember exactly.
I should interpolate at this point and say that two matters of demeanour emerged with some clarity to me during the cross-examination process where the father, albeit not legally qualified, proved in my view very adept. First, the father presented as insinuating, controlling and manipulative in the way he put his questions.
Secondly, I would say that the mother was not a satisfactory witness. She was argumentative and clearly wholly devoid of fear of the father. A number of her answers were unresponsive to the questions put.
The Evidence of Mr Z
Mr Z was called and adopted his affidavit as true and correct. He confirmed that he had seen the affidavit of Mr CC (the father’s expert). Understandably, counsel for the Independent Children’s Lawyer did not put any questions to Mr Z.
Under cross-examination by the father Mr Z gave detailed answers as to what hair follicle testing is. He explained that it is a sophisticated analysis. He explained the amounts of hair that were required for hair follicle testing including 90 to 100 milligrams of hair if testing was to be both alcohol and cannabis. It is done by weight not strands. They cut to a length of 3.9 centimetres. Obviously, there is different hair in different densities and there are radical variations. It measures the EtG level. His firm does most of the tests conducted in Australia and he is managing director of the Z Group. They do drug testing for pathology clinics and doctors throughout the region. They use PhD toxicologists. They do police testing. Everything other than police samples come through them. The laboratory is the number one in the world and the tests were verified at the laboratory (this is a testing body in Culver City, California). R Labs do FBI tests and invented hair testing. Anything over 30 mgs is excessive but it is not an exponential progression. 30 mgs would represent four to six standard drinks a day.
The Opening of the Father
The father said they should not be here. If the mother had only been reasonable. He had been through 20 months of sheer hell. Vicious allegations had been made to withhold him from his son. Then he had 70 to 80 results, all of which were dismissed. He had to see a psychiatrist, but they had not even bothered to inspect the report. He complained of non-disclosure by the mother. He said he was X’s primary carer. X would not breastfeed. Night terrors was keeping him away from him. There were no concerns expressed prior to separation. He has changed work and taken a job with the Employer M. He has been very successful and been promoted. He works for Employer M 15 minutes away. Hundreds of thousands of dollars have gone. He had no option but to break up. He could not take the hair follicle test because he could have got another absurd one. He referred to mental health arising from financials. He had been withdrawn. He was paralysed because of the fear of losing his son. Things were now good. He said he misses his son every minute of every day. Shared care is good. They will have to communicate better. The child wants to see him. It was a short-term relationship and he put in all his savings and inheritance. This was $400,000 to her $100,000. He wants to be in the position he was before proceedings started. He said the wife wants to clean him out and give him less than he put in.
The Father Under Cross-Examination by Counsel for the Mother
The father said that he and the mother met a couple of times between June and September of 2012. He moved to Perth but came over a couple of times. He was working week on week off. The mother rang him up and said it was not worth continuing the relationship but never elaborated. Ms Redwood does not drink. If you have three drinks, she thinks you are drunk. She has no perception of drink. They remained friends afterwards. When it was put to him that they had visited Country AA and the United States together in 2013, he thought this was the case. She had repaid her parents in 2013.
Counsel cross-examined about the occasion he was removed from the plane in Town U. The father said this was a very unfortunate incident. When asked why it was not in his affidavit, he said he had never done an affidavit before. It was put to him that he was represented by Hartleys at the time, the father said he drafted the affidavit. The lawyers gave him the bare bones. He did not think the affidavit addressed his removal from the flight. It was possible the article was about him. When it was put that this was in July 2013 he said he thought it was about September.
It was put to him that the mother was in Brisbane in 2014. The father said she got double wages but he did not know this at the time. He only started asking about money after the marriage. She was not spending anything and not saving. He said he was her husband and was entitled to ask her about money. The mother was living in Suburb BB in 2014 in a shared household.
It was put to him that there was an incident in November 2015 when he shouted at the mother at a concert. He said he did not remember shouting aggressively. He walked away. He had had a couple of drinks. He asked her why she was looking at his phone. It was childish. He did apologise and he should have not have walked away.
It was put to him that he became withdrawn and tired in mid-2016. He said it would not have started then. They only married in 2016. X was not then born. It was completely incorrect that he was drinking to excess. They married in 2016. He gave up smoking for years. He might have a smoke with a beer. In the last three years he has been smoking full-time. He started getting aware what was going on and started smoking more. He was asking questions and not getting answers.
He was cross-examined about events on New Year’s Eve 2017. He went to a bar with friends from 3 till 6 pm. He went again because the neighbours were having a party. When it was put to him that he was kicked out he said there was a little altercation. There was a guy who was really drunk who kept coming up to him. He got more aggressive as the evening went on. After midnight he decided to leave. It was a terrible thing to do. He lost track of time. He had not expected to be attacked like he was by the mother. He walked in and she started hitting him. He said he was sorry. He denied punching walls. He pushed the door and the door hit the wall which put a dent in it. He was not turning furniture over. She was videoing him and he grabbed her phone and threw it on the mantelpiece. She said it was broken the next day. He remembered the mother looking aggressive. She went to her bedroom and the police were called. He had had a few drinks but was still okay. He was confused when the police attended. The mother had said she had not made the call. When it was put to him that he was angry the husband’s answers were evasive. He said he was frustrated. When it was put to him that he had apologised his answers were prevaricating and circumlocutory. He agreed that he has apologised. Maybe the mother had led a sheltered life. She was upset. He had broken her phone which was wrong. He did not want to be videoed. It was an invasion of privacy in his own house.
It was put to him that he been to a consultation with a psychologist in January 2018. He said the mother was refusing to track costs. He was pretty sure what was going on. He was becoming withdrawn and had pressures at work also. His employment was terminated in 2018. He pursued an adverse action claim for four weeks’ notice. He had not been sacked because he was stoned. Nor because he was paranoid. He was finding it difficult to concentrate. He said he was putting all this money into the relationship. The mother exaggerates his use of synthetic marijuana. It was very infrequent. They broke up in December 2018. He was married to a woman who just wanted to remove all the money. He was not drinking at this point. He went inside himself. The father agreed he had five weeks work in March 2018 and was then out of work until April 2019. He then started with the Employer M. It was put to him that he was stoned in April 2018 when X was in his care. The father said this was not right and did not happen. For six to nine months, he barely slept because of his for fear of losing his son. He thought he would lose his son and everything he had worked for. He said he was over this. They were now interacting really well. He does not come home to somebody who was stealing every day.
The Evidence of Mr CC
At this point the evidence of Mr CC was interposed by agreement. Mr CC adopted his affidavit as true and correct. He was the operations manager for DD Labs and oversees the running of the laboratory. His is a purely management role but has laboratory-based responsibilities also. He started in 2006 following his degree. In 2011, he became an analyst. He still does tests himself and knows the science behind it. Samples are received through the post particularly from overseas. They use full length body hair. Head hair can be sectioned. EtG is the preferred marker. There is a caveat however, it should not be used in isolation for example in GP reports. EtG is prone to washing. Fatty acid hair products like hairsprays may change results. There are different hair types. If there is more sweat it is not suitable for EtG. Sweat can reduce alcohol in EtG. Body hair is more variable. He understood the father’s hair was taken from his back.
Mr CC had seen the results from the United States. Hair growth varies. It would not be definite back to 210 days. Generally you add three months for head hair. You can detect EtG from back hair. There is limited literature about back hair. There is no literature about back hair compared to other body hair. Normally there is a spare sample but there was not this time. It was a new sample. Sample lengths are slightly different. He had a split sample. R Labs he understood to be primarily concerned with drugs. Arm hair results can be elevated. It is a completely different specimen from a different hair site.
Under cross-examination by counsel for the mother Mr CC said that abstinence refers to no consumption of alcohol. A level of less than seven was detected. Now the level is five. The second test was just before they reduced to five which had only happened in the last week. Abstinence does not rule out a few occasional drinks. If there was regular consumption you would expect the EtG to be recorded. If there were two isolated incidents it might not be detected. A reading of 30 EtG is chronic and would amount to seven and a half UK units per day. A bottle of wine is 9 UK units. He has seen Mr Z’s affidavit and had no concerns about it. He can only compare with R Labs who use a cut off of 2 or 2.5. R Labs is respected. It is known for drugs. He was not aware of their alcohol testing.
Under cross-examination by counsel for the Independent Children’s Lawyer Mr CC confirmed that it was possible that different hair sites would produce different results. He would need the same sample.
The Father Under Cross-Examination by the Mother (cont.)
It was put to the father that he had been videoed using cannabis. He said she had tried to film him and he asked her why. She was trying to get evidence. He was not sleeping and she thought he was smoking. He was only smoking very infrequently.
Cross-examination moved to exhibit 7 at page 58 of 96 of the mother’s affidavit. He was questioned about purchases from EE Store. It was put to him that this was cannabis. He said it was not cannabis. It was slightly embarrassing. It was a product for erectile dysfunction and they only sell three to six at a time. He sent some to the lads at home who were not able to obtain it. He was not buying cannabis. He denied that there was no sex from 2016 onwards. They broke up in December 2018. The substance was known as “FF” (and he produced certain vials that showed this name). He sent some to the boys in Country L. He has never consulted a doctor about erectile function. Trust was not there. Country L was not synthetic cannabis. He bought cannabis in cash from a friend.
I interpolate to say that it was obvious from the records that the husband was buying “FF” and clearly sending substantial amounts back to Country L, where from what he said it appears not to be lawfully available for sale. Nonetheless the evidence about this aspect of the matter was, while partly made up on the run, given with conviction and I accept that “FF” is a drug for erectile dysfunction. This is so notwithstanding that at the father’s age it is surprising that he may require it, but it tends rather to reinforce the suspicion that his alcohol and drug use was very significant and may have affected his erectile capacity.
It was put to him that in the second half of 2018 he accused the mother of taking money for her own family. The father agreed with this. He demanded access to her accounts. He had verified costs in the household and wanted to know where money was going. He was still paying half the mortgage. He was shopping and paying out of his own money. He put the money in the Suburb N mortgage and drew down on it. He was still using the Suburb F mortgage as his savings account.
He agreed that they had gone to a wedding in 2018 in Melbourne. When it was put to him that he had an argument with a waiter he said this was exaggerated by the mother. The mother did not have to calm him down. He did not yell at the waiter. The waiter took him outside because the waiter had been rude. He had not yelled at X when he was unsettled. He said that he and X had the best relationship. Sometimes all parents get frustrated. He had never cared for X under the influence. He would go out and sometimes have synthetic cannabis. The mother had said he could not stay with them at Christmas. He then booked a trip to Country G and spent $5,000. He went to Country H in early 2019. He said he had let the mother know in advance. It was certainly possible he spent $4,300 on the trip. When he was cross-examined about the parenting plan he said he would do anything to get equal time. He had consulted Ms Q in May 2019. When challenged about expenditures in April/ May 2018 of $516 on alcohol he said it seemed to be. Some could be food. He said he might take beers to a friend’s house. He denied consuming alcohol to excess before seeing Ms Q. He had a few drinks sporadically. When questioned about alcohol being a big issue at court in September 2019 he said this was an accusation. When it was put to him that there were no alcohol transactions in September to October 2019 he said they had made a mistake. He agreed he had withdrawn $2,000 in cash. He was definitely more conscious of alcohol use during this period and abstained because he had tests coming up. He said there are no issues with him having a couple of beers. He should not be treated as a criminal being tested all the time. He had received the AWDTS report on 24 October 2019. When it was put to him that he had told the family reporter he was abstinent he was non-responsive. There were two tests and he disputed both results. The first one the managing director of AWDTS rang him up. He was surprised. He does not think he should have zeroes because he some alcohol but not four units per day. The DD Labs test was negative. Clearly AWDTS was wrong. He thought the risk of another incorrect report was severe. The results of an incorrect test would be catastrophic. When asked why he had not undertaken the test ordered in March he said this was because of the risk of an inaccurate result. He is not satisfied with the test. He told the Independent Children’s Lawyer he would not do a hair follicle test because he was concerned with inaccurate results.
When it was put to him that he would drink when the proceeding was over he said a few beers per week and the odd big night is not an issue. He said that he did not accept the mother’s figures for tradesmen of $3,832. He had saved quite a lot and put it all to the Suburb F mortgage. He was cross-examined about annexure 9. I found some of the answers a little difficult to follow. He said he had used that as a savings account and had put in $180,000. The mother paid rent. All his savings went in there. It was put to him that from 2015 to January 2019 the mother paid half the mortgage for some 39 to 40 months. He said it was not her contributions to the mortgage. It was put to him that on 17 June 2017 the mother paid $20,000. He agreed. He was saying where is your money. It was put that it was $60,000 in total paid by the mother in 2017. He said this was transferred from her brother’s accounts and was from her brother. When asked why he had not mentioned the $15,000 he had spent on the engagement ring, he said he put in $513,000 and the mortgage was reduced to $387,000. The mortgage was in his name. He had drawn down to pay for the mortgage because he did not have an income. He drew down $221,000 and put in $513,000. He put in $78,000 from his inheritance. Everything he earned he put in there.
When it was put to him that the mortgage had increased since separation he said he had legal fees. He pays $2,000 a month and she puts in $300 per month. She has spent $9,000 per month. There is $20,000 in his account but he has legal fees to pay. The report from HH cost him $5,000. Disclosure has not been complete. He wanted to know what happened with her money. Her superannuation does not match her wages. HH found a couple of discrepancies. He had not obtained an updated report from HH. The report was to do with income, not expenditure. He was aware the mother was seeking $372,000 from him. He had not made inquiries as to refinance. When it was put that the mother would return the ring and engagement ring the father said he had bought these in good faith. She could keep the rings. He wants her to refund the value of them. He wants to be in the position he was in before this happened. He wants the value of the rings and wants the cost of mediation.
It was put to him that he paid $2,000 since separation in child support. The father obfuscated. He then said it sounded about right. He has been assessed for child support. He should have received child support from her but had not been assessed. She is a good mother but she will not allow him to see the child. When it was put to him whether he would pay half child care and half education costs and the like he at first said he agreed. She is on $150,000 and he was on $100,000. He does not think he should pay child support because she is proposing a 3/11 arrangement.
The Father Under Cross-Examination by Counsel for the Independent Children’s Lawyer
The father confirmed that he is proposing equal time. When it was put to him that he had a negative view of the mother he said that she was a good mother. The process has caused a lot of angst. He hopes it will be better when it is finished. If he has to sell the house it will be hard to get over. It is very hard to see him so little. She is after all his money and making these accusations. If it is not a good outcome it is something he will have to swallow. He would consider accessing professional help. When he sees their final orders it is a shock to the heart. He is confident the result will be just and equitable. When asked if he thought he had contributed to the problems he agreed. He had sent messages he regrets. At the start he had done things he is not proud of. Mostly he is proud of what he has done. At one stage he apologised.
X is four and very bright. He is becoming aware. They have to be cordial for X. When it was put that his drinking was part of the problem between him and the mother he agreed. They should seek professional advice. X does not ask for his mother when he is with him. He is disappointed to be going home. Increases in time do not have to be incremental. When asked whether there was any appreciable difference between 7/7 and 5/9 he was unable to answer. It was put that his desire for 7/7 reflected a lack of insight. His answer was noteworthy. He said every case should start at 7/7. He was not able to say whether 5/9 was different because he does not have the experience. They should prioritise X’s needs.
He was asked if he was seeking time on the anniversary of the deaths of various family members. He said it was a bit selfish of him. He would like to have someone with him. He said it was absolutely essential that he and X go to the Country L. There are loads of cousins. X has a Country L passport. He would arrange phone calls if they were in Country L. He might say he missed his mother but he would be well looked after. His cousin is getting married and X must be there. It would be a big flight for two weeks (and I understood him to mean that he would like to go for longer than that). He was more than willing to undertake therapeutic counselling to assist with parenting. He would like to see how they go first. He would pay and was willing to listen.
The Evidence of Dr O
Dr O adopted her report as true and correct.
Counsel commenced with a long, rolled up question which contained a lot of background. Dr O was asked if risks were not adequately addressed, what risks would there be in the father’s care. Dr O said these were outlined in her report. They are mostly around the capacity to attend to X’s needs. Reaction times might not be as quick. He is proposing overnight time and he would use substances to sleep. Also he would have a low frustration tolerance. Obviously the extent of substance use was speculative. She was unable to say about the impact of substances, which would be different in each case. If the court found chronic alcohol issues then the father needs appropriate treatment regardless of his motivation to undertake it. Even if he thinks he does not have a problem. One session with Ms Q would not be sufficient. The mother’s proposal was Wednesday to Thursday in one week and Friday to Saturday in another week. When asked if this was enough Dr O said regardless of this it was necessary to move forward. There is a good relationship between the father and X. If there was a chronic problem, time during the week would be no better than weekends. 3/14 is less than significant and substantial time. She would support smaller periods of time. X is still young. Shorter periods of time with each parent would be beneficial. When asked about overseas travel for three weeks Dr O said this was too speculative. It would depend upon the court’s decision.
Under cross-examination by the father Dr O said if there were no risks it would depend on X. It is too early for shared care. It might possibly be appropriate when he was in school. She had canvassed alternate weekends and nights during the week. When asked if she had recalled X’s reaction to seeing the father Dr O said he ran up and hugged him. She did not recall what he said. The father suggested that X had said “Mommy can I go to Dada’s house?” but Dr O said this was not in her notes. This did not mean it was not said. X wants to see the father and spend time with him.
Under questioning by the counsel for the Independent Children’s Lawyer Dr O said the father needed treatment even if he did not want it. She would recommend one on one with a psychologist with experience with drugs and alcohol. This can be very successful. It depends on the individual. It needs insight. When asked about the Independent Children’s Lawyer’s proposal that there be some BACTrack alcohol device to be taking readings at 8 pm and 9 am Dr O said it depended as to whether there was any risk whether it be one two or three nights. Dr O said this depended upon the court’s findings. More time increases the risk if risk exists. She would not look at more than one or two nights where there are risk issues. Lack of insight was a risk. The father has to recognise the impact on himself of alcohol and its after effects. When it was put that the Independent Children’s Lawyer is proposing Friday to Sunday and then ultimately Friday to Monday and each Wednesday Dr O said this was not the same as her report. But if the risk was mitigated she would support this. When asked about the family therapy and the entrenched positions of the parents Dr O said she would start the therapeutic pathway. Financials are plainly a sticking point between the parties.
Final Submissions for Counsel of the Independent Children’s Lawyer
Counsel indicated that the Independent Children’s Lawyer seeks the orders in the case outline. The issue is risks for the father with alcohol and/or lack of insight. It was how to maximise the father’s relationship with the X. There was no more certainty about the father despite all the evidence. It was inconclusive about the father’s alcohol. It was unfortunate the father had not taken a hair follicle test this year. There are very poor relations between the parties as evidenced by their cross-examination, and also the way the father gave his evidence. There should be six months with breathalyser tests each evening and morning. The father could not abuse alcohol. If the father complies for six months and indicates he can abstain, or has addressed his issues there could be a regime similar to that proposed by Dr O. It was a matter of maximising the relationship between the father and X whilst managing risk. The mother says no more than one night but in the holidays will allow three nights consecutively. Equal parental responsibility was agreed. The Independent Children’s Lawyer still has concerns and proposes therapeutic counselling.
Final Submissions by Counsel for the Mother
Counsel submitted that the BACTracker proposal was not appropriate. There was no confidence the father would comply particularly if he gave poor results. There was the risk of conflict several times a week. The mother seeks to balance the time with the father against risks. She seeks final orders but still is concerned about risk. She was not proposing three nights until X is in school in 2022.
Final Submissions by the Father
The father said it was very difficult to hear the submissions. He was the primary carer from birth. X never breastfed and he got up at night. He got the best of care with him.
I should interpolate and say the father was labile throughout his final submissions.
He could not take the last test. He was dealing with an ex-wife who seeks to punish him. Night terrors were because X was kept from him. He hoped to find a way to work cooperatively.
So far as property was concerned the mother had reduced the mortgage between 2010 to 2013 to $135,000. She saved $105,000 in three years. Between 2013 and 2020 the mortgage had risen to $240,000. In the last 20 months she had received $196,000 and paid $24,000 in rent. He had given the mother every opportunity to progress in the marriage. She had placed money over X growing up in the family. He had done renovations in Suburb N and increased its value. He wanted to keep what he earned. He wanted reimbursement for the rings he bought. So far as his first affidavit was concerned he had come back from Country Y in January which was the thirtieth anniversary of his father’s death and she had refused him time. She accused him of having mental health and substance problems. He accused the wife of stealing from him every week. He asked whether his time should be anything less than half because of the issues raised.
Some Brief Observations About the Witnesses
Both these two primary parties made very frequent references to financial matters when being asked questions about parenting issues. It is entirely apparent from what both of them have said and the way that they say it that they are both persons with a very keen appreciation of their own financial interests. They both struck me as being very money oriented, and I have no doubt that this has been a major driver in not only the property dispute but in the parenting matter as well. The mother struck me as extremely argumentative when cross-examined by the father and certainly not in the slightest bit scared of him. As I think I have already indicated, in part her answers were non-responsive and she was by no means an entirely satisfactory witness.
Whatever criticisms may be made of the mother it is clear that the father was far worse. His evidence was given in a strongly self-pitying way. He minimised all matters put against him including his family violence and his difficulties with both alcohol and drugs. He was on occasion evasive, prevaricating and circumlocutory as I have already said and some of his answers were really somewhat strange. In lay terms they might be described as paranoid. He genuinely expressed an ongoing and enduring anxiety arising from what he had felt during the relationship to be the mother’s fixed intention to effectively defraud him of all his money and ensure he never saw his son. While I have no doubt that he is correct that the mother is extremely money oriented and wants as much as she can possibly get, and there is no doubt that she has used X at times to forward her financial interests (e.g. you will not see X until you return the USB stick – see page 24/42 of the father’s affidavit 12 September 2019) the father’s apprehensions really are suggestive a person who at times struggles to see matters in any kind of objective or realistic way.
Having said this, I turn to the statutory pathway in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”).
Statutory Pathway
The statutory pathway is set out in Goode v Goode at [65]:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Equal Shared Parental Responsibility
All parties agree, notwithstanding their various differences of opinion, that this is a case in which it is appropriate that there be an order for equal shared parental responsibility for X. Such family violence as has been established is in my view extremely limited and although self-evidently it is to be deplored it does not rise in this instance to a level where the presumption is rebutted.
The Live-With and Spend-Time Regime – the Primary Considerations
In this case everyone agrees that in principle it is appropriate that X have the benefit of a meaningful relationship with both of his parents. The question is how this may best be achieved. The mother’s proposals for very limited time relate to concerns asserted by her as to the father’s lack of capacity to control his drug and alcohol issues for sustained periods of time. There is no question that this fear that the father poses a risk springs from her lived experience of the relationship with him. There is no doubt that on a number of occasions the father has drunk to a point where he has been seriously and significantly affected by alcohol. He was prohibited from flying in 2012. There are a whole series of other incidents such as the incident with the waiter and the New Year’s Eve party which the father has resolutely sought to minimise. I should make it clear that I do not accept his evidence in that regard. There is no doubt that on occasions at the very least the husband has consumed alcohol in such enormous quantities that his behaviour has been unpleasant to a point that gives rise to serious altercations with other persons. Nonetheless, the fact is that as far as I can see the only occasion in which the mother says the father actually descended to physical violence was the New Year’s Eve party when he slammed the door and dented the wall. There is no serious suggestion that the father would harm X were X to be in his care in any kind of deliberate way.
Where things are more nuanced is the risks associated with the father’s drug and alcohol usage. I think that the Independent Children’s Lawyer’s proposal that the father be effectively alcohol tested for six months is a very sensible and practical way of dealing with these risks. The mother points to the fact that this may make the whole question of time problematic on each occasion that it occurs but I do not agree. The father has in my view minimised both his alcohol and drug use but it appears that in respect of drugs his hair follicle testing shows that he has been able to desist. In respect of alcohol there is a serious and significant ongoing risk. I accept the evidence of Mr Z which was given in an entirely convincing fashion. Indeed Mr CC the expert called by the father did not ultimately in my view seriously cavil with the reports made by R Labs. Rather he said that he would have preferred to have tested the same sample.
The father’s refusal to have further hair follicle tests because in effect he was scared it would show him up does him no credit. In my view the independent children’s lawyer’s proposal as I have said is the appropriate way forward
The Additional Considerations
Section 60CC(3)(a)
X has not expressed any views given his age. The father would have it that X is asking for more time with him but whether this is so or not I give little weight to such assertions. The father struck me as being extremely manipulative and controlling and he may well elicit such statements from X if indeed they are being made.
Section 60CC(3)(b)
It is clear that X has an excellent relationship with his mother. I accept the evidence and experience of Ms JJ that the mother was indeed his primary carer which is how she presented to Ms JJ. Furthermore, to the extent that the matter is in issue, I have the heard both the mother and father give their evidence and I believe the mother. Of course she was the primary carer and has always been so.
Having said that however it is clear that X has a good relationship with his father and indeed nobody is suggesting that it ought not be fomented and progressed.
There is no evidence about X’s uncle, who lives with him and the Mother, but there is no reason to suppose his relationship with X is problematic.
Section 60CC(3)(c)
The extent to which the father has taken the opportunity to participate in making major decisions about the child and spend time with him is open to some question. The mother has plainly discharged her responsibilities in an entirely appropriate and unremarkable way. The father has undoubtedly pursued his case to judgment and there is no doubt that he wants to spend equal time let alone more significant time.
Section 60CC(3)(ca)
The mother has plainly fulfilled her obligations to maintain the child at all points. The father’s record is nowhere near so good. He has paid pitiful amounts of child support. He was only prepared to contemplate making any further contributions in the event that his time was equal. Accepting of course that his income is substantially lower than that of the mother, the fact is that he does not have the majority of the costs of bringing X up. The mother in effect has to pay for childcare to enable her to work. In my opinion the father does not present well under this heading and his endeavours to explain away his lack of contribution to X’s wellbeing in a financial way was noteworthy.
Section 60CC(3)(d)
There is no doubt that an equal time regime would be a radical change for X. This of course is what the father seeks. Indeed it was his evidence that all cases should start at at least equal time. The relationship between the parents is one that gives rise to a descriptor all too often occurring. It is toxic and there is no doubt that Ms JJ is right that an equal shared time arrangement is inappropriate. The mother seeks to very significantly limit the father’s time to three nights per fortnight but there is nothing in the materials to suggest that the 4/10 arrangement proposed by the Independent Children’s Lawyer progressing to 5/9 after several months would cause X any undue distress. The mother will of course be concerned if more time is ordered other than that for which she contends, but her concerns would in my view and ought be reasonably assuaged by associated breathalysing proposed by the independent children’s lawyer.
Section 60CC(3)(e)
There is no significant practical difficulty or expense associated with any of the parties’ proposals, save of course that an equal time regime might prove rather more onerous for the father than he himself appreciates given his work commitments.
Section 60CC(3)(f)
There is no doubt that the mother is well equipped to provide for X’s needs including his emotional and intellectual needs. She is a devoted mother and will remain his primary carer. The father’s capacity to care for X is in my view compromised to an extent by his attitude towards being a parent, a matter I will return to below. Nonetheless it is plain that he loves X and it is implicit in the proposals even of the mother that he has a capacity to look after X sufficient to sustain even the time for which she contends.
Section 60CC(3)(g)
There is no doubt that the difficulties experienced by X’s parents have about them what one might describe as a measure of cultural overlay. The mother is of Country H extraction and I accept as the father says that she comes from a background in which the consumption of alcohol in a significant fashion appears to be not the norm. This may well have influenced her assessment of amount that the father consumes by way of alcohol. Nonetheless Ms Redwood struck me as being a composed forthright and strong-willed personality. She is undoubtedly capable of being extremely thrifty and struck me as being significantly oriented to obtaining an optimal financial result out of this proceeding.
The father is of Country L extraction and his personality struck me as in some ways surprisingly immature. He was prone to self-pity and self-absorption. Much of what he had to say about X was to do with X in effect supporting him rather than the other way round. His breezy attempts to minimise his past drug use and continuing alcohol use presented as concerning and devoid of insight.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The mother’s attitude to the responsibilities of parenthood is completely unremarkable. I have already said and repeat she is a devoted mother. I repeat however also that the father struck me as being somewhat self-absorbed and self-pitying. His attitude towards being a parent seemed to spring from a sense of entitlement as a father that is not replicated in the legislation itself. The legislation gives X the right to the benefit of a meaningful relationship with his parents and does not give rights of that character to the parents. The father’s attitude towards his responsibilities as a parent is reflected also in his niggardly approach to money. I have already indicated that the mother is extremely finance oriented and so too quite clearly is the father. This means that he is prepared to contribute only what he is forced to contribute to X’s financial upkeep.
Section 60CC(3)(j)
Although the parties may well have shouted at each other from time to time Ms Redwood’s demeanour in the witness box when under cross-examination by the self-represented father was completely inconsistent with any proposition that she has any fear of him. The single notably regrettable incident on New Year’s Eve 2017 is not in the scheme of things particularly significant, unpleasant though it undoubtedly would have been.
Section 60CC(3)(k)
I think there is still an extant intervention order but in the circumstances of this case it does not in my view add anything. The mother said she took it out because the father was sending her aggressive emails but in my opinion she is well able to stand up for herself. I note that she was prepared to link the father’s time to the provision of a USB stick which perhaps says something about her attitudes again towards the responsibilities of parenthood.
Section 60CC(3)(l)
It is plainly and kindly desirable to make final orders. In my view much of the ferocity of this litigation springs from the parties’ disputes about money and I have every anticipation that once that is resolved there is a real chance that things may settle down between the parents. In any event, the issues in my view have been clearly ventilated and it is entirely appropriate the court should bring this matter to a final conclusion.
Section 60CC(3)(m)
There are no other additional relevant matters.
Conclusion as to Parenting Issues
It is implicit in the positions even of the mother, let alone the Independent Children’s Lawyer, that the father should spend time with X. In my view the independent children’s lawyer’s proposal which, unlike those of the mother, constitute substantial and significant time within the meaning of the Act are those that are in X’s best interests. They are essentially those supported by Ms JJ and I repeat again that Ms JJ was an excellent witness. There will be parenting orders as sought by the Independent Children’s Lawyer.
Property Matters
Stanford and Stanford (2012) 247 CLR 108 (“Stanford”)
The court’s first task is to ascertain the legal and equitable interests of the parties and determine whether a property adjustment is appropriate. In this case however, as the High Court foreshadowed in Stanford, the parties have radically altered the basis upon which they conducted their financial affairs during the marriage and both of them seek a property adjustment. If is plainly just and equitable that there be one.
The Pool
The asset pool of the parties including pre-relationship assets appears to consist of the following:
a)Real property at KK Street, Suburb N $590,000.
b)Real property at E Street, Suburb F $880,000.
c)Wife’s Motor Vehicle 1 $45,000, (conceded to be part of the pool).
d)Husband’s Motor Vehicle 2 $6000 (wife’s value), $1000 (husband’s value).
e)Husband’s Motorbike $6000.
f)Wife’s share portfolio $22,400.
g)Wife’s LL Bank saver account including Employer V termination payment $57,600. (Employer V payment was $64,704 paid in 2018)
h)Wife’s LL Bank transaction account $6000.
i)Husband’s LL Bank transaction account $16,700.
j)Engagement and wedding rings $18,000.
Disputed assets in the pool asserted by the wife but in issue but from the husband are:
(1)Contents of Suburb F property alleged by wife $25,450, $10,000 by husband.
(2)Husband’s legal fees add back $95,000.
(3)Wife’s reestablishment costs $25,450.
(4)Other personal effects of the husband and wife, both asserted by the wife at $10,000.
Disputed matters asserted by the husband but in issue from the wife
a)Wedding money $10,000
b)Money siphoned off $300,000
c)Overspend since relationship $71,415
d)Reduction in wife’s banks $36,900
The parties’ liabilities are:
a)Suburb N mortgage $204,600.
b)Suburb F mortgage $354,200.
Superannuation
a)Wife’s superannuation $130,000.
b)Husband’s MM Super Fund entitlements $180,000.
The wife seeks to quarantine out of the pool the value of the Suburb N property, her share portfolio, her personal effects, and the husband’s motorbike and the parties’ superannuation.
There are a number of things to be said about the matters in dispute. First, there is no meaningful valuation of the chattels allegedly retained by the husband. These matters are of whitegoods and furniture and the like are notoriously in my view difficult to ascribe any serious value to. They cost money to buy but obtain nothing upon resale. I do not propose to include them in the pool. Their value would be likely to be minimal bearing in mind that this is a pool in total of just $1.9 million. One per cent of that pool would be worth almost $20,000. That puts these things in perspective.
Nonetheless the husband did not seriously challenge the wife’s evidence that he retained the vast bulk of all the chattels and I think the wife should be entitled to some adjustment to enable herself to re-establish her circumstances. I will allot the necessarily arbitrary figure of $10,000 in this regard. I note that separation took place some time ago and I strongly suspect she has replaced those things that she really needs to replace already.
The husband’s legal fees would ordinarily even in this modern era, where add backs are the subject of some debate, to be something that should have been added back. He plainly paid his $95,000 of legal fees by redrawing on the Suburb F mortgage. The difficulty I have however with this approach is that there is no doubt that the husband put a lot of money into that mortgage. One thing that he said with conviction and which I accept is that he poured all his earnings into the Suburb F mortgage account and used it as his own savings account. Since it is the wife’s proposal that the husband be encumbered with the whole of the mortgage on the Suburb F property in any event, I think that to add back his legal fees in these circumstances would amount to double counting and is inappropriate. I do not propose to include this add back as an item in the pool.
So far as the wife’s pre-relationship assets are concerned, I accept that these are matters which owe nothing to the husband’s input. Given the relative brevity of the marriage, and indeed the relationship, only some six or so years at the most, it is inappropriate to include them in the pool in the formal sense. Nonetheless, they cannot be wholly set to one side. They should in my opinion be brought into consideration pursuant to section 75(2)(o) in due course.
So far as the parties’ bank accounts are concerned, it seems to me that the parties kept their finances largely separate. The husband had much to say by way of complaint of the wife’s alleged squirrelling away of assets, and the fact that she has over $60,000 in various bank accounts at the moment might suggest that he was not by any means wholly inaccurate. However, much of the wife’s account relates to the Employer V payment received only 7 months before separation, and of its nature this was a payment made in respect of the wife’s exertions alone. In my opinion however, given the separation of funds that the parties effected, it is inappropriate to include any of the bank accounts that the parties have. This is all the more to where separation is now almost 2 years ago and I do not, I think, have bank details at the time of separation. Once again, in the particular and somewhat unusual circumstances of this case, they fall to be considered pursuant to section 75(2)(o).
I will exclude the husband’s Motor Vehicle 2 from the pool. Unlike the wife’s new Motor Vehicle 1, it has no meaningful resalable value.
It appears to be the joint position of the parties that they should each retain their superannuation and no one has sought a splitting order. Superannuation will stand where it is. It does however require to be considered as to what an appropriate ultimate adjustment should be.
Thus, the assets included in the pool are:
a)Suburb F property (net) $526,000
b)Wife’s Motor Vehicle 1 $45,000
c)Husbands motorbike $6,000
d)Wife’s re-establishment $10,000.
Contributions
If one excludes the prior to relationship matters, the contributions of the parties fall to be considered in a very different light. Little has been said about the husband’s earnings before he ceased employment in 2018 but the general tenor of the evidence suggests that he was very well paid. He provided the deposit for the Suburb F property and the stamp duty. He also contributed his inheritance. The wife’s case seeks to give him very little by way of credit for these significant contributions. The wife paid half the mortgage over a period of time but in my view this was just part of the warp and woof of their general marital financial circumstances. The husband equally was paying half the mortgage. He continued to contribute to the mortgage when he ceased work by drawing down on redraw facility.
The wife seems to have a very pronounced capacity for thrift and saving and she kept her finances as I find largely separate from those of the husband. That is now reflected in the final outcome of their financial circumstances. I am not persuaded on the evidence that she gave money to her family or otherwise improperly abstracted funds but she certainly kept a careful control of everything she made. Calibrating contribution in these circumstances becomes a matter of some nicety. The wife undoubtedly was the primary carer of the child but the child was also in childcare for the vast majority of time. Taking all these matters together and noting the imperfections and the internal inconsistencies in the parties’ respective positions, and noting the husband’s far greater contribution to the purchase of the Suburb F property, I would assess the parties’ contributions as being 55 per cent to husband and 45 per cent to the wife.
Future Needs – the section 75(2) Factors
Both of these parents are in unexceptionable health although the father’s mental health has its fallibilities given his proneness to substance abuse. They are both in secure employment and the wife earns half as much again as the husband. On the other hand, she has the substantial responsibility and expense of the care of X.
The loading that one might ordinarily give to the mother for the care and expenses relating to X’s upbringing are however in my view significantly offset by the assets that she already has. I do not agree with the mother’s submission that no regard whatever should be had to the very significant advantages she will possess at the end of the relationship even though to an extent those were present at its beginning. I would not for a moment suggest that these assets be brought in in any kind of dollar for dollar accounting. To do that would be to reinclude them in the pool in a fashion that in my view would not be just and equitable. Nonetheless, and as a matter of practical politics, the mother’s overarching position would leave the father in truth with very little. Given the very significant contributions he undoubtedly did make to the purchase of the property in Suburb F and at least on an initial basis to the diminution of its mortgage, in my view there should be no further adjustment in the favour of either party in respect of future needs.
Just and Equitable
Looking at the resultant outcome, namely a 55/45 division of the parties’ assets garnered during the relationship is in my view a just and equitable outcome. It will enable the father to continue to rebuild his life and will give the mother an appropriate reward for her contributions and future needs in all the circumstances.
There are a number of matters I have not thus far dealt with expressly. I have to confess they all strike me as being somewhat tawdry in their nature.
I have already said that I do not accept that the wife siphoned off large amounts of money. Both parties have sought to an extent to set out detailed reconciliations of their respective financial records and endeavoured, as I have earlier remarked, to cause the court to enter into some sort of dollar for dollar accounting exercise. I do not believe that the wife has siphoned off money. This is what she says and I believe her. As already indicated she is extremely thrifty and has a considerable capacity to save and I have no doubt she both has done so and will do so in the future. I note she has managed to pay her considerable legal fees from her earnings as she has gone so to speak. I do not propose to include anything in the pool by reference to the husband’s assertion as to the wife’s siphoning off of money.
By the same token I do not propose to include anything as sought by the husband both in terms of the alleged overspend since the end of the relationship or the reduction in the wife’s bank account. The wife has spent $45,000 on a car which is included in the pool and otherwise her expenses do not seem to me to be in such that it is appropriate to make such an inclusion under this heading.
Similarly I do not intend to include the contents of the Suburb F property. As I have already indicated, these sort of white goods cost a lot of money, but cannot be sold for any meaningful amounts. I have already dealt with the wife’s re-establishment costs.
One particularly off-putting aspect of this dispute is the parties wedding jewellery which appears to have an agreed value of $18,000. The husband seeks $18,000, but not the rings back. He made reference in his submissions of having entered into the relationship in good faith and the clear tenor of his submissions is that the wife had not and thus should be brought to account. The wife wants to give him back the rings and receive a monetary adjustment accordingly.
This aspect of the dispute reflects no credit whatever upon either party. The fact is the husband gave these rings to the wife as an absolute gift in contemplation of marriage. The marriage was not a fraud (X is evidence alone enough of that). The wife should simply retain the rings and I will exclude them form the pool. I will also exclude for the same reason, the alleged cost of the wedding.
I have not also thus far also dealt with the parties dispute as to the chattels said to as it were belong exclusively to the wife but retained by the husband. I will hear from the parties further as to this aspect of the matter. If there are matters of their nature are inherently obviously that should be in possession of the wife then I will make orders accordingly.
Finally I should note that the division of the parties properties I am going to make will leave their superannuation to one side. The relationship was not of any great length and it is reasonable to suppose that the bulk of their superannuation has accrued before or after it. To the extent that the parties have differing amounts, these are matters to which in a sense weight has been given in the overall adjustment of 55/45 of the relevant assets already referred to.
Child Support
The wife seeks that the husband fund half of all of X’s ancillary expenses such as education medical and the like. In my view this is inappropriate. First of all it is readily apparent that the wife will not in my opinion significantly defer to the husband’s views as to any kind of educational of other expenses. She will run up the bill and then tell him to pay half. This would be a clear recipe for endless further disputation. Furthermore, the husband’s income is not insubstantial but it is not markedly in excess of average weekly earnings. It is inappropriate to burden the husband with any further expenses over and above such child support as he should be assessed to pay.
Chattels
One of the least attractive aspects of this slightly tawdry financial dispute is the dispute over chattels. I have already given the wife $10,000 notionally to re-establish herself and in my view absent matters of wholly sentimental value, about which I will hear further from the parties, the parties should simply keep what they have.
Finally, I note that both parties appear to want to possess the former matrimonial home. I will give the parties an opportunity to be heard as to what orders are appropriate to give effect to these reasons for judgment.
I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 23 September 2020
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