REYES & REYES
[2017] FCCA 1625
•14 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REYES & REYES | [2017] FCCA 1625 |
| Catchwords: FAMILY LAW – Property – small asset pool – former matrimonial home and superannuation only assets – intervention of the Husband’s former solicitors – costs sought – previous costs orders not complied with. |
| Legislation: Evidence Act 1995, section 140. |
| Cases cited: Bar & JMR (No.2) [2005] FamCA 386 Briginshaw v Briginshaw [1938] HCA 34 Fields & Smith [2015] FamCAFC 57 |
| Applicant: | MS REYES |
| Respondent: | MR REYES |
| File Number: | MLC 2885 of 2014 |
| Judgment of: | Judge Stewart |
| Hearing dates: | 19 & 20 May 2016 16 June 2016 |
| Date of Last Submission: | 13 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 July 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Tulloch |
| Solicitors for the Applicant: | JH Legal |
| The Respondent appeared in person. |
| Counsel for the Independent Children's Lawyer: | Mr Arnold |
| Solicitors for the Independent Children's Lawyer: | Cathleen Corridon & Associates |
ORDERS
Parenting
All previous parenting orders in relation to the child X born (omitted) 2011 (“X”) be discharged.
The Wife have sole parental responsibility for X.
The Husband spend no time with X.
The Husband forthwith remove the video entitled “MLC2885/2014” from the internet broadcasting website YouTube and advise the solicitors for the Wife when he has done so.
Thereafter the Husband be and is hereby restrained from re-posting on YouTube or any other form of social media any material relating to these proceedings.
Within 30 days of receipt, the Wife send copies of school reports and school photographs to the Husband by email and she be at liberty to remove any identifying details from such documentation.
The Wife advise the Husband via email of any illness or injury to X which requires hospitalisation.
For the purpose of compliance with orders 6 and 7 hereof, the Husband provide an email address to the Wife.
Liberty is granted to the Husband to send cards and gifts to X on her birthday and at Christmas, and the Wife be at liberty to review all cards and gifts and assess, edit and censor them for suitability before providing such gifts and/or cards to X.
For the purpose of order 9 hereof, within 30 days of the date of these orders the Wife provide to the Husband an address or post office box where cards, letters and gifts may be sent.
The appointment of the Independent Children’s Lawyer be and is hereby discharged.
Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
The solicitors for the Wife forthwith release the sum of $5,000 to the Wife from the proceeds of sale of the former matrimonial home held on trust by them, as payment as to the cost order made against the Husband for the Wife on 23 September 2015 and the order for the Wife’s costs to be fixed and reserved on 4 November 2015.
Upon compliance with order 13 hereof, all outstanding orders for costs to be reserved are hereby discharged.
The solicitors for the Wife forthwith release the remainder of the proceeds of sale held on trust for the parties by them to the Wife.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:-
(a)the Husband and the Wife are entitled to be the sole legal and beneficial owners of all items of property including money, motor vehicles, shares, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively;
(b)each party retain absolutely any superannuation benefits, long service leave, sickness payments or other employment entitlements belonging to or earned by each of them;
(c)money standing to the credit of the parties in any joint bank account is to become the property of the Wife;
(d)all insurance policies are to become the sole property of the assured named thereon/in;
(e)each party be solely liable for and indemnify the other party against any liability encumbering any item or property to which that party is entitled to pursuant to these orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
A copy of these orders be forward to Messrs Meier Denison Guymer.
Liberty is granted to Messrs Meier Denison Guymer to apply within 28 days of the date of these orders, failing which the Application in a Case filed on 1 May 2016 shall be dismissed.
All extant applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Reyes & Reyes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2885 of 2014
| MS REYES |
Applicant
And
| MR REYES |
Respondent
REASONS FOR JUDGMENT
These are proceedings that relate to both parenting and property matters.
The parenting proceedings are in relation to one child, X (“X”) born on (omitted) 2011 who is now five years old. X has just commenced her first year of primary school.
X lives with the Wife and has not spent any time with the Husband since October or November 2015.
The Applications
The Wife and the Independent Children’s Lawyer adopted a similar position in relation to parenting matters. They seek that the Wife have sole parental responsibility for X, that X live with the Wife and that X spend no time with the Husband.
The Husband has not filed a Response since 2014 and did not file a case outline document in these proceedings. In one of four affidavits sworn by the Husband on 16 May 2016, the Husband set out within that affidavit the parenting arrangements he sought. They were, in summary, that:-
a)the parties have equal shared parental responsibility for X;
b)the Husband spend time with X each alternate weekend from after school or kindergarten on Friday until 4.00pm on Monday;
c)changeover occur by the Husband collecting X from school or kindergarten on Friday and returning her to the Wife at 4.00pm on Monday;
d)in the alternate week the Husband spend time with X from after school or kindergarten on Wednesday until 8.00pm, with X to be collected from school by the Husband at the commencement of time and collected by the Wife from the Husband’s residence at the conclusion of time;
e)X spend time with the Husband for half of the school term holidays on a week about basis. The Husband proposes having the first week and to collect her from school or kindergarten on the last day of school term;
f)X’s time with each of the parties during her birthday and Christmas be alternated each year, with the Wife to have X in her care from the night prior to the special occasion until 12 noon on that special day in even numbered years (and although not specified I assume from the context that this arrangement was to be in reverse in odd years, with X to be in the Husband’s care from the night before the special occasion until 12 noon on that special day, where she would be collected by the Wife); and
g)each of the parties refrain from consuming alcohol or illicit drugs whilst X is in their respective care.
The Wife’s position in relation to property matters is that she receives the entirety of the proceeds of sale held on trust by her solicitors, and otherwise each party retain their own assets, liabilities and superannuation.
The Husband’s position in relation to property matters had again not been particularised since 2014. His position later in the proceedings was essentially that each party keep what they have and that the money held on trust be split 50/50.
Background
The Husband was born on (omitted) 1975 and is 42 years old. He described himself in his most recent affidavit as a (occupation omitted) and is employed either part time or casually.
The Wife was born on (omitted) 1976 and is 40 years old. She is a (occupation omitted) at (employer omitted) and had worked part time at that (employer omitted) until this year, when X commenced her preparatory year, and is now employed on a full time basis.
The parties commenced a relationship in late 2006 and commenced living together in around (omitted) 2007. They married in (omitted) 2008 and separated on a final basis in November 2013. X is the only child of their relationship.
The Husband has three children from a previous relationship. His twin girls Ms A (“Ms A”) and Ms B (“Ms B”) have just turned 18, and C (“C”) is almost 17. Ms A has a son, D (“D”), who is three years old.
The Husband has re-partnered and resides with his partner Ms S and her two children who are approximately 13 and 9.
The Wife has not re-partnered and currently resides in (omitted). Her mother, with whom she has a close relationship and who gave evidence during these proceedings, lives nearby in (omitted).
I have read the lengthy material filed in this case. Given the way the evidence has proceeded, it is not practicable to refer to each and every issue raised in the proceedings. If I have not referred to a particular fact or matter it does not necessarily follow that I have not had regard to it.
History of the proceedings
The proceedings come before the Court on the Initiating Application filed by the Wife on 7 April 2014. There is extensive material filed in these proceedings. The matter was first listed before the Court on 27 May 2014. Prior to that hearing, the Wife filed a further application for interim orders on 30 April 2014 that sought, inter alia, a recovery order. The proceedings were abridged to 7 May 2014.
On 7 May 2014 both parties were represented and interim consent orders were made that:-
a)X live with the Wife;
b)X spend supervised time with the Husband each Saturday or Sunday for a period of seven hours, with such time supervised by the paternal grandmother;
c)changeover occur at the former matrimonial home;
d)an injunction was made preventing the Husband from consuming alcohol or illicit substances within 12 hours of spending time with X or during such time;
e)the parties were to attend upon Ms B (“Ms B”), psychologist, for the preparation of a privately funded Family Report to be paid for by the Wife; and
f)the Husband was to file and serve responding material.
Further orders of a procedural nature were made by the Court vacating the 27 May 2014 date. The matter was listed for mention in September and the proceedings were listed for a two day final hearing on a date to be advised. The parties were later notified on 25 July 2014 that the matter had been set down for a two day final hearing to commence on 2 March 2015.
The matter next came before the Court on 22 September 2014. Procedural orders were made setting the matter down for a Conciliation Conference in January and adjourning the property portion of the Wife’s application for mention in October 2014. On this occasion interim consent minutes were also reached between the parties in relation to X. These provided for:-
a)X to spend time with the Husband from 4.00pm on Saturday until 4.00pm on Sunday, special occasions and some limited summer holiday time;
b)changeover to occur at each of the parties’ residences;
c)a non-denigration injunction;
d)the parties to only communicate via text message unless there is an emergency, and
e)the Husband to comply with one request for supervised urine drug screens per month from the solicitors for the Wife within 24 hours of such request.
Property consent orders were also reached, which provided for:-
a)the Husband’s filing of financial material;
b)disclosure of all relevant documents; and
c)a provision for a joint valuer to be appointed in the event that the parties had not agreed as to the value of any property within 60 days of the Conciliation Conference.
The October mention date for property proceedings were subsequently administratively vacated as the Husband had filed his financial material.
The proceedings next came before the Court for day one of the first final hearing, being 2 March 2015. On this occasion the Husband was self-represented and sought an adjournment on the basis that he needed to obtain legal advice. The proceedings were then adjourned to 2 April 2015 for mention.
In April the Husband was still without representation. Orders were made for the appointment of an Independent Children’s Lawyer, the parties attend and complete a post separation parenting course and the matter was again listed for a two day final hearing on a date to be advised.
Subsequent to an Application in a Case filed by the Wife on 18 August 2015, the proceedings were listed for a directions hearing on 23 September 2015. The application sought that the Husband pay the mortgage over the former matrimonial home, home and contents insurance and all rates and taxes in relation to the property. The Wife also sought that the property be sold by a real estate agent of her choice, and that the Husband pay the costs of the Wife’s application. At the directions hearing orders were made that the Husband pay any arrears of the mortgage relating to the former matrimonial home within seven days and that in the event that he failed to do so he be responsible for the mortgage, home and contents insurance and all rates and the like. The Wife sough that failing compliance with either of the aforementioned orders the former matrimonial home be sold and that the Husband pay the Wife’s costs of and incidental to the application.
The Wife filed another Application in a Case on 26 October 2015, which sought that the Husband’s time with X be suspended, that the Husband vacate and give the Wife possession of the former matrimonial home (failing which a warrant of possession issue) and that the Husband pay the Wife’s costs on an indemnity basis.
The proceedings came before the Court in relation to this application on 4 November 2015. On this occasion orders were made that provided for, in summary, as follows:-
a)the time between X and the Husband was suspended;
b)the Husband was to complete a supervised urine drug screen by 4.00pm the following day and provide the results to the solicitors for the Wife and the Independent Children’s Lawyer;
c)the Husband was to file a Response to the Application in a Case by 13 November 2015;
d)the Husband was to vacate the former matrimonial home and provide the Wife with vacant possession, and leave the property in a fit and proper state of repair with all fixtures and fittings left intact;
e)the Husband was to allow access to the property by the real estate agent nominated by the Wife; and
f)the Wife’s costs were reserved.
The proceedings were also adjourned for a further mention on 17 November 2015.
On 17 November 2015 a further order was made for the Husband to complete a post separation parenting course as he had not yet done so. A court funded updated Family Report was also ordered. After allegations made by Counsel for the Wife that the Husband had not allowed the real estate agent access to the property pursuant to order 7 of the orders made on 4 November 2015, three notations were made noting that the Husband denied ever having prohibited access and indicating his willingness to facilitate access. A further notation was made that the Husband had declined to undertake the intake procedures at a contact centre in (omitted) on a without prejudice basis, despite at this point not having seen X since September and a continued refusal to undertake supervised urine drug screens.
The matter again came before the Court on 31 March 2016 in relation to objections to two subpoena filed by the Husband. On 10 March 2016 the Husband had filed two subpoenas directed to the solicitor for the Wife. In the first of the two subpoenas he sought production of an up to date, itemised account of the Wife’s legal expenses and an up to date, itemised account of the legal expenses of the maternal grandmother, Ms J (“the maternal grandmother”). In the second subpoena he sought the production of all emails exchanged between the solicitor for the Wife and the Independent Children’s Lawyer, all emails exchanged between the Wife and her solicitor, all emails exchanged between the solicitor for the Wife and the former solicitor for the Husband Mr P, and all emails exchanged between the solicitor for the Wife and the Family Consultant Mr T (“Mr T”). The Wife’s solicitors, JH Legal, objected to both subpoenas on the basis that they were in breach of solicitor/client privilege.
Orders made in relation to the subpoena hearing provided that the subpoena requiring the itemised accounts be struck out, and instead an order was made by consent that the Wife was to advise the Husband within seven days of the amount paid in fees to her solicitors, the source of funds for such payments and any amount outstanding. In relation to the second subpoena, paragraphs 2 and 3 (being the paragraphs requiring the production of all emails exchanged between the Wife and her solicitor and all emails exchanged between the Wife’s solicitor and the former solicitor for the Husband) were struck out and otherwise the subpoena remained.
On 13 April 2016 an updated Family Report prepared by Mr T was released to the parties for the final hearing listed to commence on 19 May 2016 for two days.
On the first day of the final hearing and pursuant to an Application in a Case filed on 11 May 2016, the former solicitors for the Husband, Messrs Meier Denison Guymer (“the firm”), sought to be joined as a party to the proceedings to recover the sum of $19,146.03 in legal expenses owed to them by the Husband. Leave was granted for the firm to intervene and they were excused from attendance until the conclusion of the property proceedings. The firm’s costs were reserved and further procedural orders were made, including an order that any money received by the Husband by way of property settlement was to be held on trust by the solicitors for the Wife pending resolution of the firm’s Application in a Case.
The matter proceeded for two days and the Wife, the maternal grandmother and friend of the maternal family, Mr H (“Mr H”), were the subject of cross-examination. The matter had not reached its conclusion by the end of the second and final day of hearing and was adjourned part heard to 16 June 2016. Prior to the part-heard adjourned date the parties were to both undertake supervised urine testing within three days, and the Husband was to complete the intake procedures at (omitted) Contact Centre.
On 16 June 2016 the matter proceeded and the Husband was the subject of cross-examination throughout the day. I note at this point that on the previous occasion, a significant amount of questions had been directed to the maternal grandmother in relation to an allegation by the Husband that she had slapped X on the buttock, leaving a large white mark (if not a bruise) in the shape of a hand. The Husband had taken a photo of the mark and annexed it to his affidavit dated 31 March 2015. The Wife, in response to the assertion that her mother had slapped X and caused a mark, filed an affidavit by a general medical practitioner, Dr B (“Dr B”), which attested to his view that the mark did not appear to be a mark from a slap or a hit by the maternal grandmother but rather appeared to be a mark which had been “set up” or staged to appear as the result of a smack. Before the matter resumed on 16 June 2016 Counsel for the Wife indicated that Dr B, upon whom she had sought to rely in relation to the assertion that the hand print had been staged by the Husband, may not have the necessary qualifications to do so. As such they had prepared an affidavit from Dr M (“Dr M”), who it was alleged had the necessary forensic qualifications to assess the photograph and provide expert evidence as to whether the mark was the consequence of a slap.
I queried the filing of this affidavit during the course of the proceedings (some eight days prior to the part-heard adjourned date) given that the Husband was a self-represented litigant who may have been required to source his own expert report had he disagreed with anything Dr M had to say, and indeed, he sought to do so.
Nevertheless, and despite this unusual course, cross-examination of the Husband continued for the rest of the day and the matter was again adjourned part-heard for the Husband to seek his own expert report in relation to the alleged assault by the maternal grandmother. The Husband was also permitted in the interim period (of about a month) to call his friend Mr K (“Mr K”) to give evidence in relation to the mark on X’s bottom, as Mr K had allegedly taken the photos annexed to the Husband’s affidavit (and later tendered in colour as an exhibit in the proceedings).
The matter came back to Court part-heard on 11 July 2016, again with a sort of false start. The Husband did not attend Court despite being on notice of the proceedings and it was not until a phone call was placed to him from Court that advised him of his obligation to attend that he appeared after the luncheon adjournment at 2.15pm. There was then the issue of an Application in a Case filed by the Wife on 6 July 2016 which sought that the Husband’s daughter Ms B, who had not yet turned 18, attend upon the Family Report Writer Mr T for a short-form addendum report in relation to her “observations of an alleged slap of the child [X], on or about 4 October, 2014”. This was supported by the Wife’s affidavit also filed on 6 July 2017, the genesis of which was a conversation that had allegedly occurred between the Wife and Ms B where Ms B had told the Wife, inter alia, that the Husband had entirely fabricated the slap incident and instead had instructed his daughter to help mark the buttocks of a then three year old X, so he could then take a photo and use it as evidence against the Wife and the maternal grandmother. Ms B had allegedly told the Wife that the Husband’s friend, Mr K, whom the Husband asserted had taken the photo of X’s buttocks, was not present on that occasion and further, that she had found a “crack pipe” in the possession of the Husband. On this occasion and again, despite the irregularity of the Wife’s Application in a Case, the proceedings were adjourned for mention in September 2016 to determine further case management given the serious reported allegations of Ms B and the irregular nature of the application. The costs of each party were reserved.
I also note that on the 11 July 2016 I had a discussion with the Husband about the continuing, and worsening, allegations in relation to his drug use. The Husband has asserted throughout the proceedings that he does not use illicit substances and rarely drinks. I suggested to the Husband that he undergo hair follicle testing to determine whether the allegations from the maternal family, and his own daughter as put through the Wife, were false or not. I was met with vehement disagreement to this proposal and the Husband even went so far as to tell the Court that if hair follicle testing was ordered that he would simply shave his body, as “enough is enough”.
A further Application in a Case and an affidavit of the Wife was filed on 28 July 2016 that further particularised the orders sought and the nature of the allegations as set out in the previous application filed. The application sought that Ms B, who had not yet turned 18, prepare an affidavit in these proceedings and be permitted to attend Court to give evidence. It also sought that the Husband undergo hair follicle testing (based on the allegations of the Husband being in possession of a “crack pipe”) and that there be a part-property settlement to the Wife in the sum of $37,887.86 from the money held on trust. This application was dealt with on the September mention date, where orders were made for the Wife to receive $35,000 by way of partial property settlement, that the Husband undergo hair follicle testing and that he be restrained by removing hair from his body until the hair follicle testing had occurred. No such order was made in relation to Ms B as the final hearing was again adjourned part heard to early 2017, by which point Ms B would have turned 18 and negate the necessity of the application.
The matter came back to Court for the continuation of the final hearing on 13 February 2017 and was listed for three days. On this occasion, after being called outside of the Court and having had calls placed to his mobile telephone without response, the Husband again failed to attend Court. The matter therefore proceeded on an undefended basis as between the Wife and the Independent Children’s Lawyer, and final submissions were given. An order was made for the Independent Children’s Lawyer to file an affidavit of service in relation to service of the affidavits filed on 24 January 2017 and 9 February 2017 by the Independent Children’s Lawyer and Ms B respectively on the Husband, and otherwise judgment was reserved.
This case has been one of substantial concern in that the parties have demonstrated such acrimony towards one another that a significant number of very serious allegations have been levelled on both sides. It is alleged by both the Husband and the Wife that X at the age of 5 has been exposed to abuse, neglect, family violence and drug and alcohol abuse in the care of the other party.
Intervention order proceedings
The parties and their extended families have engaged in intervention order proceedings. The procedural history in that regard is as follows:-
a)in October 2014 the maternal grandmother sought and obtained an interim intervention order as against the Husband, alleging that the Husband had spat on her car and threatened her;
b)the Husband also took out an intervention order as against the maternal grandmother (naming himself, Ms B, Ms A, C and X as affected family members) alleging that the maternal grandmother had slapped X and left a mark on her buttocks;
c)a final intervention order was granted on behalf of the maternal grandmother against the Husband on 21 October 2014. On the same day the Husband’s application for intervention order as against the maternal grandmother was struck out;
d)in November of 2014 the Wife obtained an interim intervention order against the Husband (naming herself and X as protected persons);
e)on 9 December 2014 the Wife obtained a final intervention order against the Husband on behalf of her and X for a period of 12 months, with no appearance on behalf of the Husband;
f)the Husband had the final hearing for the Wife’s intervention order proceedings reinstated. His applications for a rehearing were struck out in early 2015;
g)the Husband sought to have the hearing for intervention order as against the maternal grandmother reinstated. This application was struck out in January 2015;
h)the Husband filed an appeal against the final intervention order obtained by the Wife in the County Court of Victoria in April 2015, which was abandoned in September 2015; and
i)the Wife sought and obtained an extension of her final intervention order upon its expiry in December 2015.
The family violence proceedings would suggest that the relationship between the parties is highly conflictual. The parties quite readily resort to the Court processes in order to seek resolution of their disputes. The Husband’s applications at times appear to be frivolous and combative, and designed to criticise and denigrate the Wife, rather than to resolve or litigate any genuine controversy.
The Wife’s applications have an element of melodrama and anxiety associated with them.
The intervention order proceedings reflect the chronic conflict within the parties’ relationship. It is also reminiscent of their personality styles observed by me during these proceedings. On the Husband’s part, he appears reactive and competitive regarding the Wife, her family and other respective relationships with X. Throughout the proceedings there was a real sense of point scoring, to use the colloquial. That issue, at its highest point, is reflected in issues surrounding the hand mark on X’s buttocks. It is also reflected in the Husband’s failure to appear later in the trial, which was deliberate, calculated to annoy, peevish and immature.
The Wife, for her part, seems overly anxious and fearful. Her protestation of fearfulness at times seemed disproportionate to the issues in her life. I was left with the overarching impression that the Wife had a tendency to overreact. Equally, there is no doubt that the Husband would act in a provocative way from time to time.
Ultimately, there is little prospect of the parties’ relationship improving. Their personality styles negate this as a possibility. The parties devoted an inordinate amount of time in their case trying to prove that the other was at fault and blameworthy.
Alleged drug use
It has been alleged throughout the proceedings by the Wife that the Husband is a frequent user of marijuana. In her trial affidavit sworn on 14 April 2016, the Wife asserts that she had caught the Husband “smoking a bong of marijuana in our garage” and the Husband’s response to her was “It is my life. You are not in control of me”. The Wife states that the Husband had told her that he regularly used marijuana in his teenage years, but that she had no idea that he had continued to consume illicit substances throughout the parties’ relationship.
The Wife also asserts that subsequent to first finding the Husband consuming illicit substances, that she would then regularly find marijuana, tobacco and drug paraphernalia in the shed. She says that she would regularly throw away his marijuana and hide his “bong” and that the Husband would in turn leave notes along the lines of “my shed, my rules” and “I know what you’re doing smart arse”. The Wife expressed concern as to the Husband’s increased marijuana and alcohol use, particularly in relation to his confrontational nature towards both the Wife and his three elder daughters. The Wife stated that the Husband frightened her when he was angry.
The Husband paints a very different picture in relation to the consumption of illicit substances. He states that he and the Wife had consumed marijuana together on a handful of occasions throughout their relationship, but neither of them were frequent users. He puts this allegation down to the fact that, on his evidence, the Wife suffers from “delusional schizophrenia” and that at this time she “recited dreams as reality”. He supports this assertion by annexing the Wife’s mental health discharge summary from (omitted) Health after her admission to the psychiatric ward in late 2014. I note that this report lists the Wife’s condition as being schizoaffective disorder.
An ongoing issue in this case has been the provision of drug screens by the Husband. He has been requested on numerous occasions to attend for supervised urine drug testing and has either failed to do so, failed to have the screens supervised or failed to provide results to the solicitor for the Wife or to the Independent Children’s Lawyer. A brief summary on the affidavit evidence is as follows:-
a)orders were made on 22 September 2014 by consent that the Wife may make requests for supervised urine drug screens no more than once per month and are to be completed by the Husband within 24 hours of such request;
b)the Wife’s affidavit filed on 19 February 2015 briefly refers to one request being made and the results of same returning negative for illicit substances;
c)a further affidavit of the Wife filed on 26 October 2015 sets out in greater detail requests made to the Husband for supervised urine drug screens:-
i)on 28 October 2014 she instructed her solicitors to send a request to the Husband;
ii)by 10 November 2014 no response had been received;
iii)a reminder was sent by the solicitors for the Wife to the Husband on the same day;
iv)correspondence was received from the Husband’s then solicitors on 22 November 2014 that he had completed a screen on 30 October 2014 and the results were negative;
v)the Husband sent some concerning, disrespectful and vaguely threatening emails to the solicitors for the Wife and to the Real Estate agent engaged to sell the former matrimonial home. These were annexed to the affidavit of the solicitor for the Wife sworn and filed on 26 October 2015. The email of most concern was that sent to Mr D of (omitted) Real Estate on 6 October 2016. It read as follows:-
Don’t come near (omitted) Mr D, if you know what’s good for you. I’ll sort the house bloke, you just behave. [sic]
One of the three emails sent to the solicitor for the Wife on or around 7 October 2015 was, like much of the Husband’s behaviour, denigrating of the Wife and demonstrated a blunt disrespect for both she and her solicitor. It read:-
Hey Ms P, [being a reference to the Wife’s solicitor, with the given name Ms P]
I’m in the middle of establishing a new residence. Your client is still suffering a high level of mental health issues, she is as described by a work colleague as a ‘prescription pill junkie’ incredibly unstable and indecisive. I queried school selection for X, your client has no idea! I’m enrolling our daughter in school, as your client is unable to make such a decision as it is up to X’s ‘parent’ to do so, I’ll re-establish residence revolving around my daughter’s education. As for your email I’ve heard nothing in relation and can’t respond, however be sure Ms P that I’m building a file of unethical practice on your part dating back to CPS and your clients mothers abuse of my daughter, you acted as (omitted) from child protective services yeah!
My lawyer may contact you.
Thanks Ms P
Mr Reyes
[sic]
Another reads:-
Hey Ms P,
I’m still awaiting a response to my question. What school has your school teacher client selected for our daughter?
ASAP response would be at the very least respectful…yeah! I could ask again myself but would be breaching the communication code! You have until the end of today.
Thanks again Ms P
Mr Reyes
[sic]
As a result of this collection of emails, the solicitors for the Wife sent a further request for the completion of a supervised urine drug screen on 12 October 2015;
vi)no response was received following this request;
vii)a further request was sent to the Husband on 19 October 2015; and
viii)no response was received following this request;
d)orders were made on 4 November 2015 for the Husband to complete a supervised urine drug screen by 4.00pm the next day;
e)this order was not complied with and time between the Husband and X was suspended.
The Husband swore an affidavit on 16 November 2015 that briefly refers to what appears to be the issue of supervised urine drug screens. The relevant paragraph reads as follows:-
This was done on several occasions all negative. Each time I was tested I had my infant grandson in the arms of the pathologist (a total stranger), watching me do my thing. It was very degrading, humiliating and unnecessary. With all of the tests coming back with negative results, Ms Reyes then ceased bullying knowing her allegation’s were/are false and bear no substance. I feel I’ve cooperated far beyond the realm a person of my stature should be subjected too.
[sic]
On the morning of the third day of the final hearing the Husband provided to Counsel for the Wife and the Independent Children’s Lawyer results from five urine drug screens. These reports were tendered by consent and dated 5 December 2013, 20 January 2014, 30 October 2014 (referred to previously by the Wife), 25 January 2016 and 31 May 2016. Under cross-examination Counsel for the Wife sought to obtain further information in relation to these drug screens provided. The Husband, in summary, said the following in relation to each of the drug screens that:-
a)the test undertaken on 5 December 2013 was supervised;
b)the test undertaken on 20 January 2014 was unsupervised;
c)the test undertaken on 30 October 2014 was supervised. He said this on the basis that he specifically remembered taking this test, and further, it was not noted on the results as being unsupervised. The Husband said that where tests are unsupervised, this is specified by the pathology on the results, and if no such specification is present then it means that the test had been supervised;
d)the test on 25 January 2016 was supervised; and
e)the test on 31 May 2016 was also supervised, and after Counsel for the Wife questioned whether it was supervised as it did not specify, the Husband retorted by saying something along the lines of he wasn’t aware that he had to get the pathologist to physically write it.
Counsel for the Wife sought to challenge an assertion made by the Husband in his affidavit sworn on 31 March 2015. That was as follows:-
In respect of the contents of paragraph 50 of the said Affidavit, I’ve taken almost a dozen drug and alcohol screen tests all with negative result and presented them to Ms Reyes.
Counsel for the Wife queried whether the Husband had undertaken the number of screens referred to and whether he had in fact been lying in his affidavit. The Husband responded quite abruptly that he simply thought that a dozen was “a pretty rounded figure” and that he was not sure how many sets of results he had provided to the Wife. I note, as properly pointed out by Counsel for the Wife, that at the time he swore his affidavit the Husband had on his own evidence only completed three drug screens, as he had confirmed that the results provided to Counsel that morning were the only screens that the Husband had ever undertaken.
The Husband asserted that he had provided any and all results he had received to the Wife and had given her the only copies, which is why neither the solicitors for the Wife nor the Independent Children’s Lawyer had been provided with these documents as he had only very recently obtained new copies from the pathologist. He told the Court that he had not ever provided any copies to the solicitor for the Wife, and in relation to the January 2016 screen, had filed his only copy with an Application in a Case to resume time with X that was subsequently rejected by a Registrar.
The Husband was also questioned in relation to the 25 January 2016 results and the creatinine levels detected. A note on the result on the screen reads that “…the creatinine level in this sample is < 1.8 mmol/L. This suggests dilution of the sample and possible false negative results”. Counsel for the Wife suggested to the Husband that this was a result of the Husband purposefully increasing his water intake in order to dilute the sample taken and avoid the detection of illicit substances. The Husband said that he was not concerned as he has always consumed large quantities of water and it was not an intentional dilution of the sample. This screen of 25 January 2016 was the only test result that noted the low levels of creatinine.
The Husband’s demeanour in Court did not impress as a person who was ever drug affected, nor did he impress as a person suffering the ill-effects of long term drug use. To the contrary, the Husband impressed as healthy, intelligent and articulate. The drug use alleged by the Wife was marijuana.
The Husband denies the allegations in relation to drug use. He states in his first affidavit that he would occasionally consume a beer or two, and smoked marijuana “a handful of times during our relationship”. He put the Wife’s misunderstanding of this issue down to the fact that she had been diagnosed with what he refers to as “delusional schizophrenia” and recited dreams as reality. This was in fact her diagnosis of schizoaffective disorder.
I find his evidence in this regard wholly unsatisfactory. I do not believe that he had provided results to the Wife in the past, nor do I believe his excuses for not having provided the results of these screens any earlier. I find further that having regard to the warning in relation to the lowered levels of creatinine in the Husband’s sample of 25 January 2016, I do not accept that he merely drinks a lot of water. This was the only test that indicated a lowered level in creatinine and took place almost three months after the suspension of the Husband’s time with X.
Perhaps the most obvious example of the Husband’s refusal to participate in the Court process and the requirements that flow from it, even if it meant not spending time with X, was his refusal to undergo hair follicle testing. The Husband was asked at Court on 8 September 2016 whether or not he would be willing to undergo such testing in order to clear his name and further enhance his case. I note for completeness that the Husband has come to Court on each occasion with a small ponytail on the crown of his head with shaved hair around the side. When asked whether or not he would entertain the idea of undertaking hair follicle testing the Husband was adamant that he would not engage in such a process, particularly when the Wife was not made to undertake the same test. The Husband also told the Court that if he was required to undergo hair follicle testing that he would simply shave his body.
The Husband’s refusal to engage in any of the necessary steps demonstrates a disregard for the Court process. It does nothing to assist him in his case. His attitude demonstrates a significant lack of insight and maturity where the consequence of his lack of action is that X will no longer have any sort of relationship with him.
One aspect of this issue, and one which I have considered, is the possibility that the genesis of his refusal to participate in drugs screens is borne out of a misplaced and damaging sense of combativeness and contrariness on his part.
Nevertheless, I cannot ignore the assertion of drug use by the Wife during the relationship, and I prefer her evidence regarding drug use during the relationship. I do not accept that the Wife engaged in the marijuana use during the relationship as described by the Husband. I accept that the Husband engaged in marijuana use in the shed and was dismissing and threatening towards the Wife when she challenged him regarding his drug use.
The only direct evidence of drug use by the Husband beyond marijuana was his daughter Ms B’s evidence of seeing a “crack pipe” in the Husband’s possession. The Wife says that the Husband told her that he had regularly smoked marijuana throughout his teenage years, but that she was not aware of his consumption of marijuana throughout the relationship until approximately six months prior to separation where she asserts that she caught the Husband smoking a bong.
I have considered whether to draw an inference from the allegation against the Husband regarding his daughter’s observations of a “crack pipe” in his possession and observed by her. The use of other illicit drugs, besides marijuana, had not featured as an issue in the proceedings prior to that claim. The Husband was clearly outraged by the use of his daughter’s evidence in the proceedings. It was also at the point where his daughter was called to give evidence that the Husband ceased his involvement in the proceedings, and I am concerned that it may have been this that drove him to walk away.
The Husband’s daughter has sworn an affidavit in these proceedings but was not required for cross examination by the Independent Children’s Lawyer. There is a level of dysfunction in the Father’s relationships which makes me cautious in relying upon her untested but unchallenged evidence.
Ultimately, I am of the view that the Husband has been untruthful regarding his drug use during the marriage, which leads me to the inevitable conclusion that he is not truthful as to his abstinence from marijuana now. The Husband’s attitude towards drug screening creates the uneasy feeling that he is trying to avoid the truth coming to the Court’s attention. Although he has provided drug screens they have not been timely or compliant, and at one stage the quality of the sample was queried due to low creatinine levels.
When the issue of the “crack pipe” is added to the mix, implicating other addictive drugs with a shorter “shelf life” in terms of detection in urine, I must find that there is an unacceptable risk or possibility that the Husband continues to use illicit substances and that he would make ongoing efforts to conceal that drug use from the Mother and/or the Court.
In relation to the drug issue, the comments of the Family Report Writer Mr T were as follows:-
In interview Mr Reyes struck the writer as being quite angry and at times combative. He seems to be a man who is emotionally immature for his years and who lacks insight into the effects of his behaviour on others.
He also left the writer with the distinct impression he had been less than truthful about his use of alcohol and illicit drugs…
I too made similar observations of the Husband. He came across as argumentative and at times aggressive, and quite often his response to questions he did not like was to retort quite rudely with another question or a comment about how unfair aspects of the proceedings or the Court processes are. His answers in relation to why he had failed to undergo supervised urine drug screens, failed to undergo supervised urine drug screens within time or failed to provide results to the solicitors for the Wife or the Independent Children’s Lawyer were wholly unsatisfactory. Further, his versions of events in relation to instances of drug and/or alcohol abuse alleged by the Wife throughout and subsequent to the relationship were unbelievable.
The Husband’s persistent non-compliance with the requirements to undertake supervised urine drug screens (and later hair follicle testing) is capable of only one conclusion. The inference drawn from his continuous refusal to partake in supervised urine drug tests or hair follicle testing, or a failure to participate within the requisite time, is that the results of the testing, if completed, would have revealed ongoing illicit drug use by the Husband.
Alleged alcohol abuse
Both parties throughout the course of the proceedings have made allegations that the other has abused alcohol or are dependent on it.
The Husband alleges that the Wife at the commencement of the relationship called herself a social drinker, however, this was not the case. He says in his affidavit sworn 16 November 2015 as follows:-
When I met Ms Reyes was a non-drinker Ms Reyes drank daily with her alcoholic housemate. Ms Reyes was the one who introduced beer into our home on a daily basis. I deny Ms Reyes ever seeing me intoxicated and my 3 teenage daughters can attest to this, I have held Ms Reyes hair back often over the porcelain bus (toilet). My first task upon arriving home every single day from work, was to relieve Ms Reyes so she could have her drink.
[sic]
He further alleges in his earlier affidavit of 31 March 2015:-
Further, when X was one year of age there were often occasions when I would have to take Ms Reyes to bed after her having passed out on the couch as a result of alcohol consumption.
He later goes on to say as follows:-
Ms Reyes had once stayed with the girls at her friend’s party after verbally attacking me in an extremely intoxicated state. My daughters were already asleep and I asked the hosts to care for them whilst I walked away from the abuse.
The Husband also asserted under cross-examination that it was in fact the Wife who had issues with alcohol abuse. He was questioned by Counsel for the Wife in relation to an incident of over holding of X on the Father’s Day weekend on around 6 September 2015 that was contained in the Wife’s own affidavit sworn on 14 April 2016. A summary of this incident on the affidavit evidence of the Wife was as follows:-
a)the Husband was due to return X to the Wife at 4.00pm and when he did not arrive the Wife sent him a text message asking where he was;
b)at 4.40pm the Husband responded with a text message that read “Can’t drop her at yours til tomorrow. She’ll have to stay at home. I doubt you’re sober to drive on a Sunday or Monday for that matter ay. C yall tomorra” [sic];
c)the Wife called the Husband and the call was not answered. At 4.45pm she sent him a further text message informing him that she was coming to collect X;
d)the Husband responded to the text message shortly thereafter with a message that read, in part, “Are you OK to drive? I’m concerned from what I’m hearing. I’ll be smelling your breath and checking your eyes before you leave with her”. A further text message was sent to the Wife shortly thereafter that reads as somewhat of a veiled threat, “Will be checking”;
e)the Wife informed the Husband again that she was on her way and he sent a further text message that read “Eyes and breatho she’s worried so am I your so mates are too!!” which was received just before the Wife arrived at the former matrimonial home;
f)the Husband informed the Wife upon her arrival that she would not be taking X with her and that she needed to complete a breathalyser test;
g)the Wife eventually blew into the breathalyser and before she was able to view the result the Husband went back inside the former matrimonial home and yelled out words to the effect of “it’s .22. Get off my property. You’re not having X” before slamming the door in the Wife’s face and purporting to show the result to his teenage daughter;
h)the Husband and Wife exchanged a series of text messages. The messages sent by the Husband and received by the Wife read as follows:-
.22, did you use mouth spray? Same unit yeah? I rang the police. She stays until you’re sober.
That shit you’re on shows up on the breatho that’s why I bought you’re same breatho machine and tested you. You’re off your head all day every day! No more Ms Reyes!! Go to work full time and get off the gear!! It’s destroying your relationships with those who care most.
Prescription junkies are real get help, look at your pupils they’re always dilated? You hit but I see. You can’t fool me. Please please please for our daughter, get off that crap.
I’ll be testing tomorrow both eyes and breath before I leave yeah!
[sic]
i)the Wife attended at the (omitted) Police Station where the police indicated to her that they would intervene on her behalf as an intervention order was in place naming X as a protected person. The Wife was breathalysed at the police station and returned a reading of 0.00;
j)the (omitted) police phoned the Husband requesting that he return X to the Wife’s care immediately, to which the Husband allegedly responded that he only deals with (omitted) police and hung up the phone;
k)the Wife received the following text message shortly after 8.00pm that night:-
Can you tell your dad’s mates at (omitted) cop shop to stop harassing me. I can’t be bothered with the law suit. Mr P needs to learn how to google breathos and their capabilities. Ours can print detected substances with an adapter, did you know? He doesn’t. Will cite him for aggressive bullying by the way he’s been pulled up already this evening! If you keep popping, I have to do what’s best. Sorry for hand is forced, it’s about our girl, she doesn’t deserve this. Please please stop it hurts us all!
[sic]
l)the matter was handed over to (omitted) police who advised the Wife very late that night that they would not “drag X out of bed at that time” and that they would contact her in the morning;
m)the Wife was requested to attend the former matrimonial home by (omitted) police at approximately 8.30am the following morning. Upon her arrival the Husband insisted that she be breathalysed and the police refused and told him to return X to the Wife’s care;
n)X was returned to the Wife and the Husband was escorted into the back of the divisional van by police in the presence of both X and the Wife.
The Husband told the Court that the reason he had made the decision to breathalyse the Wife was because he had been told by a friend of hers that she had been drinking excessively that afternoon, and that she had fallen out of the car and stumbled up to the front door upon arriving at the former matrimonial home. He denied ever having slammed the door in the Wife’s face and asserted that he had shown her the results on the breathalyser, to which she had responded that the reading could not be that high.
The Wife asserts that she had not consumed alcohol that day, and nor had she for the 24 hours prior to the scheduled changeover time. She further asserted that she returned a negative reading when breathalysed at the (omitted) Police Station.
In relation to this incident on Father’s Day 2015, I find the evidence of the Husband wholly unsatisfactory. I do not accept that the Wife had a blood alcohol concentration of 0.22mL/L and that she was physically incapable of caring for X on this occasion. I note that for both the interactions of Sunday evening where I find on balance that the Husband slammed the door in the Wife’s face, and the interaction of Monday morning where the police were required to facilitate changeover at the former matrimonial home, X was present. This is highly inappropriate and demonstrates a significant lack of insight from the Husband in exposing young X to parental conflict. At this stage X would have been 4 years old, and while I accept that she may not have been able to fully grasp the situation she would have been made acutely aware of the parental conflict between the parties. Police attendance for incidents occurring between parents is highly stressful for a child, particularly given that the Husband was escorted from the home in a police vehicle. The Husband has again demonstrated incapacity to put X’s interests first and instead spends his time and energy attempting to discredit the Wife and those associated with her.
Equally, the Wife has made allegations throughout the course of the proceedings that the Husband was addicted to, or highly dependent on, the consumption of alcohol. The Wife asserts that during the early stages of the relationship they would often share a drink together in the evenings, however upon the decision being made that they would attempt to conceive, the Wife cut down her alcohol intake and urged the Husband to do the same. She asserts that the Husband would consume a six pack of beer most evenings, and was spending approximately $1,000 a month on beer and cigarettes.
The Wife further stated that around the time that X turned one, the Husband would consume a six pack each day after work and continue drinking from the refrigerator in the garage. In one allegation, the Wife states that:-
I noticed on a couple of occasions that if Mr Reyes took X for an afternoon walk on the weekend he was stashing several beers in the pram to drink along the way.
The Wife says that her attempts to convince the Husband to reduce his alcohol consumption often resulted in heated exchanges between the parties and his responses to any suggestion of curbing his habit were “extremely distressing comments” and were “highly intimidating”. Given that the Husband appears prone to outbursts, lacks emotional maturity and appears to have a tendency to be quite hostile, even when giving evidence, I accept the Wife’s evidence. I note that the Wife also makes an allegation that the Husband, subsequent to separation, admitted to the Wife and the maternal grandmother that he suffered from an “illness”, meaning alcohol addiction.
The Husband vehemently denies any allegation that his alcohol consumption is excessive or that he has an alcohol addiction, in a similar combative style to that which he approaches any other allegation in the proceedings that paints him in a negative light. His evidence was quite contradictory in that, at one stage he had said that he was a “non-drinker” when he first met the Wife, and at another stage he said that he had been known to enjoy the occasional beer however never to excess and that the Wife had never seen him drunk.
In relation to the allegation that he had admitted an addiction to alcohol, the Husband said that the comments made in a sarcastic manner to the maternal grandmother had been taken entirely out of context. The Husband deposes in his affidavit:-
As to the suggestion that I have made an admission regarding addiction to alcohol I deny that this is the case. I recall that I attended at the home of Ms Reyes’s mother with Ms Reyes. This was approximately a week after Ms Reyes and I had separated. This was the first occasion that Ms Reyes had made an allegation that I was an alcoholic. I denied the allegation. I admit that I made a sarcastic comment to the effect of “They say alcoholism is an illness maybe it snuck up on me we can go and talk to someone and see if there is a problem”. In no way was I making an admission. As stated, this was a sarcastic comment made by me in frustration in response to the allegation that had been made.
I prefer the evidence of the Wife in that while the Husband may not have admitted that he suffered from an addiction, he did at least acknowledge that he may have had issues with excessive alcohol consumption.
On balance, and having regard to all the evidence before the Court, I accept that the Husband consumed alcohol on a regular (if not daily) basis. The alcohol consumption, partnered with the consumption of marijuana, increased the likelihood of the Husband’s angry outbursts and heightened parental conflict. The Husband through his actions has exposed not only X, but his other three daughters and the Wife, to significant parental conflict and family violence.
Instances of over-holding X
The Wife deposes to many instances of the Husband either returning X to her care later than scheduled, or failing to return her at all.
The circumstances of these instances of over-holding, in summary, are as follows:-
a)after the proceedings were issued but prior to the first Court date, the Husband withheld X from the Wife on three occasions. This resulted in the Wife filing an Application in a Case prior to the first return date. The circumstances of the withholding as put by the Wife at that time were as follows:-
i)on 15 April 2014 the Husband physically removed X from the Wife’s care and did not return her until the following day. At this time X was not having any overnight time with the Husband;
ii)on 19 April 2014 (the Easter long weekend) the Husband failed to return X to the Wife’s care on that date and did not return her until 23 April 2014. At this time it was agreed that the Husband was only to spend day time with X under the supervision of his mother; and
iii)on 28 April 2014 the Husband removed X from the maternal grandmother’s care when he arrived at her home with a male friend and allegedly intimidated her. He did not return X until the following day;
b)subsequent to consent orders being reached between the parties on 7 May 2014 that the Husband was to spend day time only with X under the supervision of his mother, the Husband withheld X on two occasions in July 2014;
c)after the Wife was discharged from hospital in October 2014 the Husband refused to return X to her care for three days;
d)on 21 June 2015 the Husband returned X to the Wife an hour later than scheduled with no explanation as to why;
e)on 28 June 2015 the Husband returned X to the Wife ten minutes late but had unilaterally taken X to have her ears pierced (and I note that at this time X was not yet four years old);
f)on two consecutive Sundays, being 12 July 2015 and 19 July 2015, the Husband returned X to the Wife’s care 10 minutes later than the scheduled time, and on the second occasion he had provided X with a mobile telephone, which the Wife confiscated. X was also returned to the Wife on 26 July 2015 with the mobile telephone, which she again confiscated and returned to the Husband the following week;
g)on 6 September 2015 the Husband refused to return X to the Wife’s care and made allegations that the Wife was not sober and therefore unable to care for X. This incident occurred on Father’s Day and has been referred to at length, but I note that it required police intervention for X to be returned to the Wife;
h)on 19 September 2015 the Husband failed to attend at changeover in order to spend time with X, and gave no explanation for his absence;
i)on 27 September 2015 the Husband returned X to the Wife’s care 20 minutes after the scheduled time;
j)on 11 October 2015 X was returned to the Wife 40 minutes early with no explanation given; and
k)on 25 October 2015 X was returned to the Wife 15 minutes later than the scheduled time. The Wife alleges that X said to her “Mummy, you can’t take my phone off me”, following which the Husband said to the Wife in the presence of X “let her have the phone you child abuser”. It was at this point that the Wife suspended the Husband’s time, which was then formally suspended by order of the Court on 4 November 2015.
The Husband’s unreliability is of concern. Despite X’s young age, the lack of structure in her routine is troubling and of course creates a level of unnecessary stress and anxiety for the Wife that would not have otherwise occurred, resulting in X’s exposure to further parental conflict and adult issues.
I note this particularly in relation to the issue of X’s mobile telephone. I find it inappropriate that a child not yet four years old should be in the possession of her own personal mobile phone. What is even more concerning, however, are the comments made by the Husband to the Wife in the presence of X and branding her a “child abuser”. The Husband has demonstrated no regard for the fact that derogatory comments directed towards the Wife expose X to the parental conflict between the parties. He has shown no understanding of wrongdoing and no insight into the harmful effects this sort of language may have on X as she develops.
YouTube
Throughout the proceedings there was a distinct level of animosity detected between the maternal grandmother and the Husband. Various allegations were made by both parties towards the other, which I will come to shortly. One instance referred to by the Husband was the maternal grandmother’s attempts to remove X from the Husband’s care on a Sunday afternoon in around July 2014. At this stage the Husband was due to spend day time with X from 10.00am to 5.00pm and supervised by the paternal grandmother.
The Husband referred to a mobile phone recording he had of this incident, and showed this recording to the Court. The recording depicts the Husband picking up X and carrying her to the front door where the maternal grandmother had arrived at the home and knocked on the door to collect X to return her to the Wife’s care at 5.00pm. She greeted the Husband pleasantly and he responded with “where’s Ms Reyes?” The maternal grandmother told the Husband that the Wife had a migraine and couldn’t get out of bed, so she was going to collect X on the Wife’s behalf. The Husband refused to hand X to the maternal grandmother, telling the maternal grandmother that the orders stated only the Wife could collect X and he had been in trouble for breaching the orders before so he could not release X into the care of the maternal grandmother for fear of breach. I note the irony in this in that the Husband keeping X overnight was entirely in breach of the spend time with orders at that time.
The Husband was questioned about the contents of the video under cross-examination. He said the video was taken by either his mother, sister or perhaps a friend, and at first said that the video was being filmed anyway. The Husband then said that the maternal grandmother had dropped X off at the Husband’s residence that morning and there had been an incident with her that caused him to want to film the afternoon changeover and that it had probably been his idea (and I note that he had not informed her that the changeover would be filmed).
To the credit of the maternal grandmother, when the Husband refused to place X in her care, she left the residence and did not particularly argue with him. However, the Husband followed her outside with X and tried to engage in argument in the presence of the child.
Under cross-examination the Husband was asked whether he thought it was appropriate to have a dispute with the maternal grandmother in the presence of X. He told the Court that he did not think it was a dispute and said “that’s just an adult conversation”. When he was asked whether he thought this was an inappropriate interaction in front of X he said that “there was nothing inappropriate…it’s a very appropriate conversation, and nor would she have understood too much of it”.
The Husband has no understanding of what is and is not appropriate for a child to be exposed to. Further, in observing the video I note that there appears to be a sense of premeditation, in that the video was already being filmed and the Husband deliberately picked X up at the start of the video and carried her to the front door. This interaction was entirely inappropriate and should not have occurred in the presence or hearing of X. The Husband’s nit-picky approach in refusing to give X to the maternal grandmother causes unnecessary stress and anxiety for all parties and X, and his claim that he did not believe he could trust the maternal grandmother to care for X appears to be baseless.
The Husband was asked to forward a copy of the video via email to Chambers, to Counsel for the Wife and Counsel for the Independent Children’s Lawyer. He was unable to do this as he told the Court the video file was too large to send by email.
On 14 June 2016 Chambers received an email from a Mr K, and the body of the email contained a description of “You tube video of Ms J” and a hyperlink to a YouTube page. Earlier that day the Husband had uploaded the video depicting this changeover incident to YouTube, with the file number of the matter used as the name of the video. In the video you can clearly hear the Wife referred to by first name as well as the maternal grandmother.
It is not appropriate to have such a video recording on a web site where it is available for public viewing and it should be removed.
Circumstances of separation
Like almost every aspect of this case, there is also a dispute in relation to the circumstances of separation. The events depicted by the Husband and the Wife, while both centred around the same event on or around 7 November 2013, are different.
The Wife’s evidence is that the Husband had been consuming alcohol and marijuana throughout the course of the evening and had returned to the main house at approximately 9.00pm. He unsuccessfully attempted to move or open a clothes horse and yelled to his older three children asking whose chore it was to take care of the laundry. He became so angry to the point that he was smashing the clothes horse against the kitchen cupboards and the Wife screamed at him to stop as she was worried he would harm either her or one of the children. When the Husband went outside to smoke a cigarette she informed him that she could not live like this and he responded by saying “if you can’t accept me for the way I am then take X and fuck off”. The Wife then proceeded to pack clothes to leave across the next few days.
The following day, the mother of the Husband’s three older daughters called the Wife to inform her that Ms A was 23 weeks pregnant. She further informed the Wife that the three girls were at her residence and were going to be staying with her. According to the Wife she was screaming and yelling in fear on the phone as the Husband had arrived at her property and had smashed a window, and the police had arrived. The Wife had a friend collect her and X. The Husband had blood on his hands and informed the Wife that Ms A’s mother had not allowed him to see Ms A. The Wife informed the Husband that she was leaving him and her friend took the Wife and X to the home of the maternal grandmother.
In the first few weeks after separation the Wife asserts that the Husband harassed her with numerous phone calls and text messages. She asserts that the Husband would state things such as “you’re playing games”, “you come to me when I’m pissed so I don’t remember what I said” and “you sound exactly like that cock sucker and we all know how that turned out for her” (a reference to the mother of Ms A, Ms B and C). She also alleges that he said to her something along the lines of “the drugs will only take three months to get out of my system and then you will have nothing on me”.
The Husband tells a very different story. His evidence in his affidavit of 31 March 2015 in relation to the incident was that he had stubbed his toe on the clothes horse which resulted in it falling over. The Wife yelled at him and the Husband went outside so she could calm down. When he returned inside he says that he found the Wife lying on a bed in the foetal position crying, she told him that she did not know what was wrong, that she was not herself and that she did not want to be there. The Husband said words to the effect of “if you need to leave and get help then do so, you can’t just take X and fuck off, it is not fair to her”.
The Husband says that the following evening, everything seemed to be back to normal and the Wife had apologised for yelling at the Husband the previous evening and she had not packed any clothes to leave the matrimonial home. They were informed of Ms A’s pregnancy the next day and the Husband attended at Ms A’s mother’s home, where Ms A’s mother was “erratic and aggressive” and as a result the police were called. During this interaction the Husband said he accidentally broke a window but cleaned up the glass and looked after his daughters while the police calmed their mother down.
The Husband elaborates further on this incident in one of four affidavits sworn by him on 16 May 2016. He says at paragraph 38 as follows:-
Ms Reyes dissolved the marriage just 6 minutes after we learnt of Ms A’s 2nd trimester pregnancy stating “I can’t deal with this” I understood Ms Reyes’s limited capacity to deal with the news and I made no attempt to sway her decision to leave. Ms Reyes had Ms A kicked out of school the following day despite Ms A’s desire to continue her education, I involved the department of education and had Ms A reinstated, Ms Reyes and other supporting staff members were reprimanded by the Dept. of EDU for bullying and breach of their code of ethics.
[sic]
I prefer the evidence of the Wife for a number of reasons. Firstly, and in a general sense, I have a preference for the evidence of the Wife when it is in conflict with the evidence of the Husband. I had the valuable opportunity to observe the parties in Court. In assessing the Wife’s truthfulness and demeanour, I have not ignored that at times she demonstrated heightened and disproportionate levels of anxiety, which gave rise to a tendency to exaggerate. However, the Husband exhibited a general attitude of combativeness and disrespect. When coupled with his competitiveness and anger towards the Wife, I have formed the view that he is prepared to say or do whatever is required to achieve his desired outcome.
I do not accept that the Wife, with whom the Husband’s elder daughters appear to have a good relationship, had Ms A thrown out of school and subsequently resulted in a reprimand by the Department of Education. The Husband has not provided any external evidence to support these allegations.
Thirdly, the Husband’s angry demeanour is corroborated by the evidence of his daughter Ms B. On balance, I accept the Wife’s version of the circumstances of separation.
Mental health issues
Both parties have made various allegations of mental health or emotional issues against the other, most often the Husband toward the Wife.
The Wife has readily admitted in her affidavit material and evidence that she suffers from schizoaffective disorder, which in her case has resulted in abnormal thought processes such as psychosis and depression. She has also been candid in relation to the two admissions she has had to the Mental Health Services of (omitted) Health in (omitted) in both July and September 2014, most recently on 25 September 2014 with a discharge on 22 October 2014.
The Wife attends upon Dr R (“Dr R”), a private psychiatrist, whom she was originally seeing approximately once every six weeks and now attends every three months. Dr R filed an affidavit in these proceedings but was not required for cross-examination. His affidavit supports the assertion by the Wife that she has been well since her discharge in October of 2014. In fact, the letter to the solicitor for the Wife annexed to the affidavit of Dr R went so far to say as follows:-
In summary Ms Reyes suffered from an episode of depression with psychotic features since mid-2014. She has completely recovered from her illness, maintained stable employment throughout the period of psychiatric follow up and is fully capable of looking after her four year old daughter X.
She will attend three monthly appointments to monitor her recovery but there are no current concerns about her mental health.
Despite the Wife’s candidness in relation to her mental health issues, the Husband continues to allege a variety of illnesses (or variations on the same illnesses) throughout his affidavit material and in evidence. Aside from the occasional derogatory references to the Wife in calling her a “psycho”, he asserts at various points in time that she has schizophrenia, has attempted suicide, suffers from delusional schizophrenia, has obsessive compulsive disorder (or OCD) and that she confuses reality with fantasy. I also note that the Husband is at times derogatory toward the maternal grandmother and the mother of the Husband’s three older daughters.
Dr R gave evidence in the proceedings and was cross examined by the Husband and the Independent Children’s Lawyer.
This evidence of the Husband is in direct conflict with the medical evidence submitted by the Wife, the Wife’s own admissions and the evidence of Dr R.
I do not regard the Wife as posing any risk to X as a result of mental health issues. Although the Wife has had mental health issues in the past, obviously serious enough to require hospitalisation, she is compliant with treatment and medication. Furthermore, the Husband’s application was to spend time with X and therefore by inference no issue is taken by the Husband regarding the Wife’s capacity to parent X on an ongoing basis. The Husband’s comments in relation to the Wife’s continuing mental health issues appear to be directed towards impugning the veracity of the Wife’s evidence in a hurtful and nasty way, and echo the Husband’s disrespectful attitude towards the Wife.
Although there are no diagnosed mental health issues in relation to the Husband, there are allegations of anger management issues. Like almost every unsavoury topic in this case the Husband has refused to acknowledge any wrongdoing or transgression on his part. His total refusal to concede any matter whatsoever is unsatisfactory and demonstrates a lack of insight.
There is no evidence of the Husband’s mental health or psychiatric state before the Court. The Wife in her trial affidavit referred to his “very bad anger management problem” that often resulted in outbursts of yelling and rage, and excessive physical discipline of Ms A, Ms B and C. An example was given of an event in late 2013 where after an argument at the dinner table the Husband had pinned C to the wall by holding his forearm to her chest and screamed obscenities in her face. In what was a particularly worrying statement, the Husband had allegedly said words the effect of “look, she hasn’t even flinched. She’s used to seeing her dad kick her sisters’ arses. She needs to see it and learn” in relation to the then two year old X’s reaction to the confrontation between the Husband and C, who would have been approximately 13 years of age at the time.
The Husband’s inappropriate discipline
The Wife gave evidence of several concerning outbursts of the Husband directed at both her and the Husband’s three older daughters. I have already discussed the circumstances of separation and the Husband’s actions in hitting the clothes horse against the door. A further incident was the Husband’s interactions with C on 17 October 2013.
The Wife says that on this occasion the three older girls were arguing at the kitchen table at which point the Husband began to scream and swear at them in front of X. The Wife alleges that the Husband continued to berate and verbally abuse C in X’s presence, and said words to the effect of “you might be the princess at your mother’s house, but not here”. C retorted and ran to her bedroom, where she was followed by the Husband who continued to swear and scream at her. The Wife alleges that when she reached C’s room, the Husband was holding his forearm against C’s chest and had pinned her against the wall, and was screaming and swearing in her face. As a result of this incident the Wife left the home with X for the remainder of the night after informing the Husband that his methods of discipline were inappropriate and that X should not be exposed to that behaviour.
Unsurprisingly, the Husband’s evidence tells a different story. He says that there was an argument that occurred between himself and C but it had resolved quickly, and that no such physical interaction occurred. He further stated that C and Ms A spent the next few days at their mother’s home, not as a result of the incident but because they were able to freely move between the two houses. The Husband appeared to minimise such a significant incident and attempted to brush it off as typical teenage behaviour. This sort of behaviour allegedly occurred quite often in the presence of X. Such significant exposure to family conflict at X’s tender age is not in her best interests, and the Husband’s explanations for these sorts of incidents just do not pass muster. I prefer the evidence of the Wife with regard to this incident.
Allegation of gas tampering at the former matrimonial home
The allegation that the Husband had purposefully left the gas running in the former matrimonial home upon vacating the premises is significant.
The Wife asserts that the Husband intentionally left the property in a condition which is dangerous and a physical threat to the next visitor at the property. She says that the Husband knew that the next visitor to the property would be the Wife or a person engaged by her to facilitate the sale of the former matrimonial home. The next visitors were in fact the Wife and a friend of the maternal grandmother, Mr Z.
Mr Z gave evidence that he attended the former matrimonial home with the Wife and the maternal grandmother on 5 December 2015. He says that the house was a mess and there were holes in the plaster requiring repair. Mr Z goes onto say that the Husband arrived at the property shortly thereafter appearing dishevelled, unshaven and scruffy. The Husband checked the mailbox and then greeted Mr Z with “hi bro” before heading into the former matrimonial home.
Mr Z, on his evidence, followed the Husband into the house as he was aware that there was an intervention order in place against the Husband at this time. The Husband saw some mail sitting on the bench, and yelled at the Wife words to the effect of “don’t you dare get my mail out of the mail box”. Mr Z told the Husband he should leave the premises, which he did.
The next day Mr Z says that he returned to the property with others to continue work on the home prior to the sale. He says that he again returned on 7 December 2015 where, among other things, he changed all of the locks on the property save for the back door, secured a sliding door and filled a hole in a wall. He says that when they left at approximately 5.00pm all the lights had all been turned off and the curtains were drawn.
Mr Z says he returned again on Thursday 10 December 2015 to continue works on the outside of the property, as he did not have a key. He says that the skip in the driveway contained the bricks that had been used to fill the hole in the wall a few days earlier and some further bricks that had been cleaned in preparation for laying by the Wife’s brother and father were missing. When Mr Z went to the rear of the property he saw that there was a hose left in the pool that had gradually been filling it with water.
Mr Z says that the Wife then arrived about 9.00am with a key to the property. He says that the house was warm and smelt of gas, and he discovered that two of the gas knobs on the kitchen cooktop had been left on and were releasing gas into the home. Upon informing the Wife of this, she informed him that she had also found the open flame gas heater had also been left on at “full blast” and that no one had accessed the home since the previous Monday. He also says that the brackets he had used to prepare the holes in the plaster had been physically punched into the wall. He says as follows:-
My heart sunk as I believed this was very dangerous. I am in the business of importing gas cook tops and stoves. The way the gas was on with a heater with an open flame is an attempt to scare someone or blow the house up.
I am also satisfied that the Wife promotes the relationship between X and the twins, Ms Reyes and Ms A, who are X’s half-siblings. The youngest child of that siblingship, C, maintains her relationship with the Husband. The dynamics in this case are such that this fact renders the relationship between X and C impossible, unless it takes place via X spending time with the Husband. Although I am satisfied that the Wife is prepared to promote a relationship between X and all of her siblings, it is unlikely that the Husband would permit that to occur unless it occurred on his terms and in the context of his older children, maintaining that relationship via or through their relationship with him.
The capacity of the parents
I am satisfied that the Wife has the capacity to care for X and provide for her physical, financial and emotional needs. She has been doing so since separation. I am also satisfied that the Wife’s capacity to care for X is not diminished by the mental health issues which have affected her in the past. The evidence suggests that the Wife seeks out appropriate support if she is unwell and that she has a supportive relationship with the maternal grandmother. I have no reason to believe that the Wife will not continue to react appropriately for X if her health becomes impaired in the future.
There are numerous criticisms directed towards the Wife’s capacity to care by the Husband. However, his own application did not seek to disrupt the primary care relationship between X and the Wife, and implicit in that stance is the notion that he thinks the Wife is good enough to have the primary care of X. I find that the Wife is better than good enough and will provide well for X.
The capacity of the Husband to care for X on an unsupervised basis is impaired by questions surrounding illicit drug use, alcohol use, anger issues and his vituperative attitude towards the Wife which impacts on his interactions with X. In that sense, X would need to be protected from such issues which could feasibly take place under appropriate supervision. The issues in the dynamic is so nuanced and entrenched that the only real possibility to protect X from such issues is through an experienced third-party supervision agency, such as a contact centre or an employed supervision agency.
The question then arises as to the viability of long-term supervision. In the recent case of Betros & Betros [2017] FamCAFC 90, the question of long-term supervision was again considered by the Full Court of the Family Court of Australia by their Honours Thackray, Murphy and Austin JJ as follows:-
It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted…Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174).
Furthermore, X would need to be reintroduced to the Husband and the only viable way of doing that, in my view, would be through an appropriately qualified child psychologist at first instance, then moving to a contact centre or the like.
In assessing the Husband’s capacity to be involved in X’s life, I note that up to and including the commencement of the hearing that he was adamant that he would not accept supervised time. Although he declined to participate further in the hearing, his attitude to supervised time had softened if there was no other option. That is to his credit and it is the first inkling I perceived as to a level of insight into the serious issues in this case.
In the present circumstances of the Husband, and in assessing the present state of the evidence, it is difficult to see how the Husband might improve his position, given his current attitude to the following issues:-
a)the Husband denies violence, however, I find that violence has occurred and has been directed both to the Wife and his three older daughters, and that X has been exposed to such violence;
b)the Husband denies the issue of the hand slap, yet I find that it is probable that he manufactured this incident;
c)the Husband denies the gas incident yet I find there is a risk which is unacceptable that the Husband is responsible for this event;
d)the Husband is, inter alia, belligerent, combative, taunting, deprecating, competitive, disdainful, critical and controlling in his attitude towards the Wife. The low regard in which he holds the Wife is obvious. His attitude is so appalling that it impacts on his capacity to look beyond the issues of those impediments and relate appropriately with his daughter;
e)the Husband denies illicit drug use and excessive alcohol use. In respect of the use of marijuana, I find that the Husband has been untruthful regarding his marijuana use and it is unlikely that he is abstinent. In relation to the use of methamphetamines (such as “ice” or “crack”), I do not make a positive finding given the unsatisfactory nature of the evidence in relation to this, but I do find that there is a risk that he is using serious illicit substances beyond marijuana. With respect to alcohol, I find that he has likely used alcohol to excess and minimised his drug and alcohol use; and
f)I find that the Husband is impulsive, demonstrated, for instance, by his walking away from the proceedings, seemingly in a fit of pique.
When there are such serious issues pertaining to the Husband’s presentation, and when the Husband simply either denies that the issues exist or states that it is the Wife who has those problems, it is difficult to imagine where the Husband might start to gather improvements in his capacity to care.
Each of the deficits in the Husband’s presentation and capacity have a real prospect of impacting negatively on X’s welfare individually. When considered collectively they are indicative of a more deep-seated problem which would likely require the Husband to obtain professional assistance to overcome.
The further aspect of this is the impact on the Wife and her parenting capacity. There is little in the Husband’s presentation to reassure me of his capacity to engage with the Wife in a non-conflictual manner and this has the potential to cause her stress, particularly given her vulnerabilities anxieties and her predisposition to same. There is also a real risk that the Husband will again engage in threatening and/or violent and/or risky behaviour.
The attitudes of the parents towards X and the responsibilities of parenting
This has been dealt with in other parts of these reasons and I do not propose to repeat matters here, save to say that I adopt those matters as previously set out regarding the Husband’s wholly unsatisfactory approach to a whole range of matters. This includes his adherence to Court requirements, family violence, the safety of others (the gas incident), the manufacturing of evidence (the slap) and over holding X. Suffice to say that the Husband’s attitude to parenting leaves much to be desired.
The Wife has demonstrated an appropriate attitude to parenting X and I have no concerns with respect to this issue in regard to her.
The likely effect of any changes to X’s circumstances
The orders which I propose to make will have no change to the existing arrangements. The Husband has not seen X for a considerable period of time and that will continue.
With regard to an order for supervised time, it is likely that such time would continue to be fraught with difficulty. Nevertheless, I have considered whether supervised time and the minimal changes that would entail to X’s day-to-day life could be implemented and put into place a meaningful relationship between X and the Husband.
Even the modest effects of changing X’s circumstances to implement a supervised time regime, presumably on a fortnightly basis, seem limited. It is likely that such changes would continue to cause the Wife stress and anxiety and expose her to the ongoing prospect of being exposed to family violence and conflict with the Husband. This in turn is likely to cause her stress and anxiety.
Any family violence involving X or members of her family
I have dealt with family violence extensively throughout these reasons. Violence issues have formed a significant part of my reasoning, including but not limited to my assessment of risk and the Husband’s capacity to expose X to physical or psychological harm from being exposed to abuse, neglect or family violence.
I do not propose to repeat those matters here but rather adopt this under my consideration of section 60CC(2) of the Act.
The extent to which X’s parents have participated or failed to participate, or taken or failed to take the opportunity to participate, in decision making in relation to X and to spend time and communicate with X
It is quite clear that the Husband has sought a relationship with X, and that much has been evident in the number of years that these proceedings have been on foot. However, he has made the decision not to participate and I infer from that action that he no longer seeks to be involved in X’s life. Alternatively, the matters involved in the proceedings have become too much for him to bear in terms of being involved in her life. This matter is less relevant as the risk factors are such that I have determined that it is not in X’s best interest to maintain a relationship with the Husband at this time.
The extent to which X’s parents have fulfilled or failed to fulfil their obligations to maintain X
The Husband’s support of X has been limited. He does not currently pay any child support in relation to X. This factor in and of itself makes very little difference to the outcome of the proceedings.
The practical difficulties and expenses associated with X spending time and communicating with a parent, and whether that difficulty or expense will substantially affect X's right to maintain personal relations and direct contact with both parents on a regular basis
This matter factored into my assessment as to whether or not there should be some supervised time ordered and whether, in practical terms, supervised time would work. Whilst being cognisant of issues surrounding long-term supervised time it seems apparent, as I have set out, that the only available supervision facilities would be those provided by third parties. I have no idea whether the Husband would be prepared to pay for such supervision as he did not participate at the end of the proceedings. I am however aware that it is difficult to obtain long-term supervision at a contact centre, and in circumstances where the Husband’s attitude is such that he is likely to be belligerent and oppositional in exercising such time, there would seem to me to be real practical issues with respect to the imposition of supervised time on a long-term basis in any event.
There would not seem to be any geographical impediments to ongoing time and that issue has not factored significantly in these proceedings.
The maturity, sex, lifestyle and background of X and her parents
There is nothing of any particular relevance in this factor with regard to X beyond the usual consideration that to deprive a child of a meaningful relationship with a parent is a very serious matter indeed.
Aboriginality
This is not an issue in these proceedings.
Any views expressed by X having regard to her age and maturity
There are no particular views that have been expressed by X regarding spending time with the Husband. In any event, even if views were expressed they would be unlikely to impact on the outcome of these proceedings given X’s young age.
Whether it would be preferable to make orders that are least likely to lead to the institution of further proceedings
These orders will be final orders.
Children’s cases are never final in the sense that circumstances may change and arrangements may need to change as a result.
Ultimately, the issue of whether or not a change of circumstances has occurred will need to be considered by any judicial officer hearing the matter at that time.
I cannot discount that the Husband at some stage might find himself in a position where he would seek to spend time with X. For that reason, I think it is appropriate that he receive school reports and the like, and that he be permitted to send cards and gifts to X. I regard this issue as important for if at any stage in the future it becomes appropriate for X to spend time with the Husband, it will provide some foundation upon which their relationship can be rebuilt.
Any other factors or matters the Court deems relevant
Clearly, and as I have set out, the issue in these proceedings is the assessment of risk. It is a very serious issue to deprive a child, particularly child of X’s tender years, from a relationship with the Husband. However, in the particular circumstances of this case it is my view that this is the only reasonable outcome. It may be that with different sort of personality styles on the part of the Husband and the Wife supervised time could have been implemented and used as a means to which a further and more extended relationship between X and the Husband could be built. However, the actions of the Husband over many years, together with the risk factors and family violence issues which I have set out in detail in these proceedings, render that particular outcome inappropriate. This of course means that X will be deprived of a meaningful relationship with the Husband, and that in and of itself has negative aspects to it.
There is no optimum answer in this case and in the circumstances I can only determine that which is best for X in her particular circumstances with her particular parents. It is in her best interests that the Husband has no contact with her at this time.
Property matters
I now turn to the property proceedings between the parties. These are property proceedings in relation to a very modest asset pool. In total the non-superannuation assets available for division between the parties consists of the proceeds of sale of the former matrimonial home in (omitted). Those proceeds were initially just over $77,000. On 8 September 2016 I made an order for the Wife to receive a partial property settlement of $35,000.
In essence, the proceeds of sale of the former matrimonial home are the only real asset of significance available for division between the parties. The Wife owns a very modest motor vehicle which I propose to ignore for the purpose of these proceedings, and there are chattels.
In addition to the parties’ non-superannuation assets, the Wife has superannuation of approximately $90,300 and the Husband has superannuation of just over $64,000.
At the time of separation the parties had a joint bank account of around $5,000 which was divided equally between them.
As set out in her case outline document, the Wife sought to retain all of the proceeds of the sale of the former matrimonial home, of which there is just over $40,000 remaining. She does not seek a superannuation split.
The Husband sought a payment of $39,000 (being approximately half of the total proceeds of sale of the former matrimonial home) and that each of the parties retain their own superannuation entitlements.
Costs issues loom in these proceedings and there are outstanding costs orders as follows:-
a)on 23 September 2015 the Husband was ordered to pay the Wife’s costs of $2,500;
b)on 4 November 2015 the Wife’s costs were fixed in the sum of $2,500 and reserved;
c)on 31 March 2016 each of the parties’ costs were reserved; and
d)on 11 July 2017 each of the parties’ costs were reserved.
I note for completeness that both the Wife and the maternal grandmother in their affidavit material make reference to costs orders made throughout the extensive intervention order proceedings in the Magistrates’ Court of Victoria. The Husband to date has not yet complied with any costs order in either the Federal Circuit Court of Australia or the Magistrates’ Court of Victoria, and asserts in his affidavit material that:-
…this is all Ms Reyes and consequently all incurred costs are her responsibility, as mine are mine…If anything I believe Ms Reyes should pay my legal fee for initiating this horrid litigation. Again Ms Reyes costs are hers and we split the equity in the house sale 50/50.
[sic]
I also note that pursuant to consent orders made on 7 May 2014, the Wife was wholly responsible for the costs of Ms B’s report.
Further, on 11 May 2016 the Husband’s previous solicitors sought to intervene in the proceeding to recover outstanding costs from the Husband. The firm set out that they were owed $18,959.03 as at 1 December 2014 when the firm rendered a final account to the Husband. They sought to recover $19,146.03 and further sought that any proceeds of sale of the former matrimonial home that the Husband was to receive (if any) be placed in a trust account or at the very least not released to the Husband until a resolution of that dispute. By agreement and sensibly, it was agreed that those solicitors would be provided with a copy of these orders and granted liberty to apply with respect to whether those monies should be paid directly to them, if any monies are to be received by the Husband. The firm’s costs of their application to intervene in these proceedings have also been reserved.
The law with respect to property matters
Part VIIA of the Act provides for the division of property between parties to a marriage.
Section 79 of the Act enables the Court to make such orders as it considers appropriate in altering the interests of the parties in their property and sets out a number of significant matters that must be considered in order to determine what orders are appropriate.
The High Court considered the operation of section 79 of the Act in Stanford v Stanford [2012] HCA 52, together with the provisions of section 79(2) and section 79(4). The High Court said at paragraph 40:-
To conclude that making an order is “just and equitable” only because of and by reference to various matters in s79(4), without a separate consideration of s79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
Their Honours further observed, at paragraph 42, that:-
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied…
In this case the factor which suggests that it is just and equitable to make an order for alteration of property between the parties is quite clearly that there is money held in a trust account which needs to be apportioned between the parties. Furthermore, the parties by their conduct have agreed that I should make a property settlement order pursuant to section 79 of the Act and I propose to do so.
In the circumstances of this case I am well satisfied that the interests of justice and equity require that the Court should proceed to make a property order.
Contributions during the marriage
Section 79(4) of the Act requires consideration of the contributions of the parties. The relevant parts of section 79(4) are as follows:-
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:–
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent…
Each of the parties made contributions during the marriage. Their marriage produced one child and I am satisfied that both of the parties worked in both a financial and non-financial capacity during the marriage. I consider that the contributions of the parties both financial and non-financial during the course of the marriage should be considered equal.
The Wife says, and I accept, that as at the commencement of cohabitation she had almost $41,000 in savings and held a very similar amount in superannuation entitlements. She says that at the commencement of cohabitation the Husband had no savings, owed approximately $20,000 to his mother and held superannuation entitlements of just over $7,000. She says that at the time of cohabitation the Husband’s mother owned the former matrimonial home, which the parties purchased from her in (omitted) 2009 for $270,000. The Wife says they borrowed $250,000 for the purchase of the home, $20,000 of which was used to pay back the Husband’s debt to his mother, and that the Wife paid the deposit on the former matrimonial home in the sum of $16,000 out of her own savings account.
The Husband disputes the Wife’s assertions as to his initial contributions. He says that he had $28,000 already invested as a deposit and payment of stamp duty for the transfer of the former matrimonial home. He asserts that he had $19,000 in superannuation across two accounts.
I prefer the evidence of the Wife for the reasons previously stated.
Contributions after separation
The Wife has cared for X post separation with no financial support from the Husband. She has maintained a home for X and had sole responsibility for her financial support.
In all these circumstances the post separation contributions by the Wife are superior to the Husband’s and I shall take that into account.
It is not possible to assess with mathematical precision the contribution based entitlements of the parties and, in my view, one should be careful in trying to do so in an asset pool of this size. In small and modest asset pools said adherence to mathematical formulae can create skewed perceptions.
Specifically discussing the assessment of contributions at different times, their Honours Bryant CJ and Ainslie-Wallace J (with whom May J agreed) in the Full Court of the Family Court of Australia in Fields & Smith [2015] FamCAFC 57, said at paragraph 168:-
However, the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by s 79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.
It has been held in several cases that the assessment of financial contributions is not a meticulous mathematical exercise, see Bar & JMR(No.2) [2005] FamCA 386 at paragraph 74:-
The Full Court, on numerous occasions has reflected upon the nature of proceedings under s.79 and has explained that they are not a mathematical or accounting exercise. There is an obligation imposed on the trial Judge to examine the facts and evidence and to evaluate and then determine what is a just and equitable order on the facts of the case and applying the principles contained within the Act. That approach is best explained by the Full Court (Ellis, Strauss and Lindenmayer JJ) in the following words:
“The task of the court in proceedings under s79 is not akin to an accounting exercise. The task is to examine the facts and evidence carefully to decide what is just and equitable in all of the circumstances. There cannot be expected to be a universal answer to that question on any given set of facts. It is of the essence of judicial discretion that different minds may comfortably arrive at different conclusions. By and large, marriage is a joint venture where parties can expect to buffer each other from the winds of misfortune that blow during the course of their relationship. The degree of the buffer may depend on how much individual sailing they do without consultation or indeed contrary to the wishes of the other. But there can be no certain answer to how much that should be when applying s 79 principles. See Ellis, Strauss and Lindenmayer JJ in Harris (1991) FLC 92-254; (1991) 15 Fam LR 26, and by Fogarty and Finn JJ in Beneke (1996) FLC 92-698; (1996) 20 Fam LR 841 and also Kay, Warnick and May JJ in Danielian (unreported) Appeal No. EA 6 of 2003”.
JEL & DDF [2001] FamCA 907 was referred to favourably by the Full Court of the Family Court of Australia in Hoffman & Hoffman [2014] FamCAFC 92. At paragraph 152 of JEL & DDF [2001] the Full Court summarised the general principles which arose from the cases to which it had referred in its reasons, and said inter alia:-
(h) It is ultimately the exercise of the trial Judge’s own discretion on the particular facts of the case that will regulate the outcome.
(i) In the exercise of that discretion, the trial Judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.
Other matters contained in section 79(4)
I consider the matters contained in subsection (d), (f) and (g) of section 79(4) of the Act.
The effect of any proposed order upon the earning capacity of either of the parties
The orders which I propose to make will not affect the earning capacity of either the Wife or the Husband.
Any other order made under this Act affecting a party to the marriage or a child of the marriage
There are no other orders affecting the parties or either of them which have relevance to the outcome of this case.
Any child support that a party has provided, is to provide, or might be liable to provide in the future
The Husband is not in receipt of child support in relation to his daughter C. He told the Court he may be able to receive a Family Tax Benefit but would not know until he had completed his tax return. At this stage he resides with his partner and her two children and told the Court that she does not receive child support from her former partner.
The Husband does not currently pay child support for X. He blames the Wife for this. He told the Court that the Wife had refused any sort of application to be made to the Child Support Agency so he set up his own account. The Husband gave evidence that his income has been below the threshold at which the Child Support Agency will assess income for payment, and so he has been assessed to pay nil. He told the Court that his income had been approximately $14,000 as he had been working casually because he had the primary care of his grandson, D, and the lowest assessable rate was $21,000. I have dealt with the minimal child support paid by the Husband to the Wife.
The section 75(2) factors
The remaining factors in section 79(4) for consideration are the matters referred to in subsection 75(2), insofar as they are relevant. I propose to deal with those matters now.
The age and stage of health of each of the parties
The Wife is 40 years of age and is employed on a permanent basis at (employer omitted). Notwithstanding her past mental health issues she is in good health.
The Husband is 42 years of age and is also employed, but on a casual basis. He has previously worked full time and I have no reason to believe that he could not return to full time work. In fact, he told me that he was awaiting the availability of a full time position with his current employer. The Husband is in good health.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The Wife earns income as a (occupation omitted) at (employer omitted) and gave evidence that her income increased when she returned to full time employment. The Husband gave evidence that he had recently obtained employment and was earning approximately $42,000 gross per annum, and he describes himself as being employed as a (occupation omitted) with the (employer omitted). The Wife asserts that prior to and during the marriage the Husband was earning $80,000 per annum but I find that this attributed earning capacity of the Husband is overly optimistic, and I assess his earning capacity in the region of $45,000 per annum.
The Wife has a superior capacity to earn income to the Husband and it is likely that such superiority will continue. She also has higher superannuation entitlements than the Husband. She will have the ongoing care of X and at present she is not receiving anything by way of financial support from the Husband. If she is prepared to make an application for child support, it is likely that the Husband would be assessed to pay child support at a moderate level. Given the Husband is employed in (employment omitted), it is likely that the Wife could receive child support and it would be paid directly from the Husband to her.
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The Wife will have the ongoing care of X, which is a significant factor in terms of an assessment of financial issues. She will be required to provide accommodation and will have the responsibility of providing her financial, emotional and physical support moving into the future. The Husband will spend no time with X pursuant to these orders.
The Husband also has the care of C, who is now almost 17 years old. He supports himself from his income and believes he will be eligible for a family tax benefit. He resides rent-free in a home owned outright by his current partner. He gave evidence that he contributes towards the bills and general financial contributions around the home, and that he and his partner jointly save approximately $200 per week. There are economies in his present living arrangements which are not available to the Wife.
Commitments of each of the parties that are necessary to enable the party to support himself or herself and a child or another person that the party has a duty to maintain
Each of the parties filed Financial Statements in these proceedings which set out their income and expenditure. Their necessary expenditure for self-support and family support seem reasonable.
The responsibilities of either party to support any other person
I am not aware that either party has a legal responsibility to support any other person except for X on the Wife’s part, and C on the Husband’s part.
The negligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country or any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia
Each of the parties are employed. The Wife was receiving a Rental Assistance benefit in the sum of $150 per week and a Family Allowance benefit of $250 per week, but given the rise in her income this year those benefits have likely abated or have been revoked.
Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The remainder of the monies held on trust, in the approximate sum of over $40,000, are modest. The amount will not have a significant impact on the respective standards of living of the parties. Both will be required to support themselves and accommodate the reasonable standard of living that they can each derive from their weekly incomes. Their respective weekly incomes are sufficient to support themselves at an adequate but not an extravagant level.
There have been costs reserved and costs orders made against the Husband as I have set out previously.
Further, there is the issue of the Husband’s previous solicitors seeking to be involved in the proceedings to recover the sum of $19,146.03.
The Wife also has legal costs outstanding.
The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
This is not applicable in these proceedings.
The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The marriage between the parties is relatively short and has not had a significant impact on the earning capacity of either of them.
The need to protect a party who wishes to continue that party's role as a parent
Each of the parties are employed and will continue their employment, notwithstanding the Wife’s role as the primary carer for X.
If either party is cohabiting with another person--the financial circumstances relating to the cohabitation
The Wife is not cohabiting with another person.
The Husband is cohabiting with his present partner and she provides a home in which he lives, together with her two children and C. The Husband’s partner owns the home mortgage free and on the Husband’s evidence, both he and his partner contribute to household expenses.
The Husband’s living arrangements are likely to provide economies of scale which are not available to the Wife at this time.
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
I have considered carefully the interests of the Husband’s previous solicitors in terms of the outcome in this case. They have a legitimate interest in having their outstanding legal fees paid by the Husband. I have taken that into account in assessing how the sections 75(2) factors might impact on the Husband as he will be left with a debt. Nevertheless, each party bears their own costs in the proceedings (save where otherwise ordered) and accordingly the legitimate interests of the firm cannot have priority over the Wife’s proper entitlements pursuant to section 79 of the Act.
Discussion
In the ultimate outcome of the proceedings, I am of the view that the contributions of the Wife are superior due to her initial financial contribution and post separation parenting contributions. That will result in a contribution based entitlement which adjusts in favour of the Wife. Furthermore, I am of the view that the Wife’s circumstances and the demands on her income are greater due to her sole care of X. This is particularly so as she is not in receipt of any child support from the Husband, she is not supported or assisted by any other person and is therefore solely required to provide a home for herself and X.
In the circumstances of this case, the property of the parties, whilst modest, is important to both of them. The total asset pool available for division is approximately $229,300 on a one-pool approach. If the Wife takes the entirety of the monies held in trust that will leave the Husband with his superannuation and at the very least a debt to his former solicitors. If I descend into mathematics, in percentage terms, that would equate on a one-pool approach to the Wife taking approximately 72% of the pool and the Husband approximately 28%.
In the circumstances of this case, I propose to order that the Wife receive the entirety of the proceeds of sale held on trust for the parties. However, at the same time I propose to make the costs order as owing to the Wife by the Husband in the sum of $5,000 in total. Accordingly, the payment to the Wife equates to an overall division of property and superannuation entitlements to the Wife in the vicinity of 70% to her and 30% to the Husband.
In my view, on a contribution based assessment alone, the Wife’s entitlement is around 65% to 70% of the current property and superannuation entitlements available for distribution between the parties. Furthermore, I assess the section 75(2) factors as weighing in the Wife’s favour by at least 10%, having regard to her ongoing obligations to care for X for many years to come. Accordingly, I am comfortably satisfied that the division of property and superannuation entitlements at 70% to the Wife and 30% to the Husband is appropriate and is just and equitable in the circumstances.
The result will relieve the Husband of the obligation to pay outstanding costs orders. He will retain his superannuation entitlements but they will not be immediately accessible for him. He will have an ongoing liability to pay outstanding legal costs to the firm.
The Wife will retain her superannuation entitlements which are not immediately accessible by her. She will receive approximately $35,000 plus $5,000 in costs. She too will be required to pay for her legal expenses. The Wife is likely to be left in a superior financial position to the Husband, however, in the circumstances of this case that is appropriate.
I am satisfied that the property orders I make are a just and equitable division of property and superannuation entitlements between the parties.
For all of the foregoing reasons I make the orders as are set out.
I certify that the preceding three hundred and three (303) paragraphs are a true copy of the reasons for judgment of Judge Stewart
Date: 14 July 2017
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