Roberts & Ors & Pedrana & Ors
[2013] FamCA 224
•9 April 2013
FAMILY COURT OF AUSTRALIA
| ROBERTS AND ORS & PEDRANA AND ORS | [2013] FamCA 224 |
| FAMILY LAW – CHILDREN – Mother subject to denigration and abuse by father both before and after separation – No evidence of change – Psychiatric evidence about the husband concerning – No prospect of shared parenting being in child’s interests – Presumption is rebutted. FAMILY LAW – CHILDREN – Mother seeks that there be no contact by the husband with child – Not in child’s best interests but any time needs to be supervised – Problem of limited resources of contact centre – Inability of father to pay for a supervisor is not a basis to ignore the risk to the child. FAMILY LAW – CHILDREN – Paternal grandparents seek time with the child but live in Queensland – Relationship between grandmother and mother not good – Time should be limited to when father has contact. FAMILY LAW – PROPERTY – Issues complicated by husband’s bankruptcy – Trustee and wife seek to set aside payment by husband to his parents arising from a significant drawdown of a mortgage – Payment had the effect of defeating the claim of the wife and the trustee – Payment set aside. FAMILY LAW – TRUST – Husband’s parents argued an entitlement to the money because they held an interest in the property by virtue of a trust – Discussion about the nature of the claimed trust – Interest pursuant to a trust rejected. FAMILY LAW – PROPERTY – Division as between wife and trustee of husband’s estate – Trustee submits that the creditors should be given significant consideration – Creditors unclear. |
| Bankruptcy Act 1966 (Cth) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| Allen v Snyder [1977] 2 NSWLR 685 Commissioner of Stamp Duties (Queensland) v Jolliffe [1920] HCA 45; (1920) 28 CLR 178 Dal Pont, G E, Equity and Trusts in Australia, 5th ed, (2011) |
| APPLICANT: | Ms Roberts |
| 2ND APPLICANTS | Mr H & Mr G |
| 1ST RESPONDENT | Mr N Pedrana |
| 2ND & 3RD RESPONDENTS: | Mr V Pedrana and Ms C Pedrana |
| INDEPENDENT CHILDREN’S LAWYER |
| FILE NUMBER: | MLC | 1231 | of | 2011 |
| DATE DELIVERED: | 9 April 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 12, 13, 14, 15 June 2012; 19, 20 & 21 November 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Nicholson |
| SOLICITOR FOR THE APPLICANT: | Lilley Dawson |
| COUNSEL FOR THE 2ND APPLICANTS: | Mr Fary |
SOLICITOR FOR THE 2ND APPLICANTS: | Harris Carlson Lawyers |
| 1ST RESPONDENT: | In Person |
| COUNSEL FOR THE 2ND & 3RD RESPONDENTS: | Mr Edmunds |
SOLICITOR FOR THE 2ND RESPONDENTS: | Westminster Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Brennan |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYERS : | Victoria Legal Aid |
Orders
That the wife have sole parental responsibility for the child M (“the child”) born … August 2009.
That the child live with the wife.
That the wife advise the husband of all decisions of a major long-term nature she makes concerning the child as soon as any such decision shall be made provided always that the husband provide to the wife an email address at which he can be reached and she respond to that email address.
That the husband spend time with the child on one Saturday in each fortnight from 10 am to 4 pm provided that all such time is supervised by a person (as distinct from a commercial organisation) or a contact centre agreed between the parties (or appointed pursuant to the orders contemplated in paragraph 5) on the proviso that such agreed person (but not the contact centre) provides to the wife an undertaking in writing that acknowledges having:
(a)read the relevant paragraphs relating to parenting issues between the husband and wife and which paragraphs shall be provided to that person by the Independent Children’s Lawyer;
(b)read these orders;
(c)agreed that, having undertaken the supervisory role, a failure to ensure the proper supervision of the child may amount to a contempt of this Court.
That if by 4 pm on 26 April 2013, the husband and wife have not been able to agree about the name of the supervisor referred to in paragraph 4, upon application to the Honourable Justice Cronin on a date to be fixed by arrangement with the registrar, the Court fix the appropriate supervisor from the names provided by reference to paragraph 6.
For the purposes of paragraph 5, upon filing and serving an application supported by an affidavit confirming that agreement has not been reached, the husband and wife shall each set out the names of the persons they wish to be used as the relevant supervisor with a letter from each of such persons confirming their willingness to undertake the task including their willingness to sign the undertaking referred to in paragraph 4.
For the purposes of paragraph 4 and the avoidance of doubt, the hours of 10 am to 4 pm shall be the outer limits of the husband’s time and if the contact centre or supervisor cannot or will not provide those hours, the time shall fit within the hours that can be arranged.
That the paternal grandparents spend time with the child by agreement with the wife and failing agreement at times coinciding with that of the husband.
That the exchange point for the purposes of these orders relating to the child shall be by agreement and failing agreement, at C Contact Centre.
That the mother be at liberty to provide a copy of these orders to health professionals and schools and kindergartens as she sees is necessary.
That all other extant parenting orders are otherwise discharged.
That pursuant to section 106B of the Family Law Act 1975, the disposition of the sum of $280,000 by the husband to his parents Mr V Pedrana and Ms C Pedrana is set aside.
That within one calendar month from the date of these orders or at such other time as may be agreed with the Trustee of the Husband’s Bankrupt Estate (but not the wife) Mr V Pedrana and Ms C Pedrana pay to the said trustee, the sum of $280,000. Interest on that sum shall run from the date of these orders.
From the sum referred to in paragraph 13, the trustees shall forthwith upon receipt of the money, pay to the wife $50,000 together with the portion of any interest to which she may be entitled.
That the wife retain to the exclusion of the said trustees (and by his bankruptcy, the husband), any interest she may have in the real property and its contents at J Street, Suburb K.
That the balance of the proceeds of the sale of the Suburb L property currently held on trust for the parties, be forthwith paid to the wife. The interests of the trustees (and by his bankruptcy, the husband) are, by these orders, distinguished in such money.
To give effect to paragraph 16, these orders shall be sufficient evidence of the entitlement of the wife to the said money and any interest accrued thereon.
That save for the purposes of enforcement of these and other orders of the Court, all parties otherwise retain to the exclusion of all other parties, any property (including superannuation) which has been the subject of these proceedings and which is in the possession or control of those parties respectively.
That save as issues of costs, all outstanding applications are otherwise dismissed.
Save as to the completion of the tasks referred to in paragraph 4, the Independent Children’s Lawyer is discharged from the proceedings.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Roberts and Ors & Pedrana and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 1231 of 2011
| Ms Roberts |
Applicant
And
| Mr H & Mr G |
2nd Applicants
And
| Mr N Pedrana |
1st Respondent
And
Mr V Pedrana and Ms C Pedrana
2nd and 3rd Respondents
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
This property and parenting dispute was undertaken in two parts because of the husband’s bankruptcy just prior to the listing of the final hearing.
The parenting issue concerning three year old M was heard first.
Although the participants each had different proposals, the parenting issues were:
(a)should there be an order for equal shared parental responsibility or should sole parental responsibility be given to the wife;
(b)was there an unacceptable or for that matter, any risk, of harm to the child if he was in the care of the husband without supervision;
(c)should the husband’s time (if any) with the child be restricted; and
(d)should the paternal grandparents spend time with the child and if so, on what terms.
The husband’s parents also sought parenting orders. They supported the husband and initially offered to supervise his time with the child. That offer was withdrawn at the conclusion of the proceedings.
The various parenting proposals at the conclusion were different from those suggested by all parties at the commencement of the case.
The husband represented himself pointing to his bankruptcy as a financial constraint to having a lawyer but a number of legal practitioners had acted for him during the interlocutory stages.
At times, the husband said that he was not “with it” but his attention to detail particularly in cross-examination, indicated that he had prepared for the hearing and he participated fully. He raised objections to material of other parties and articulated his arguments well. Throughout the hearing, I raised with him the need to question witnesses and I gave him opportunities to expand on his own evidence where it was lacking. I sought his proposals for the resolution of the parenting proceedings and he articulated them. Thus, despite not having legal representation, the husband had every opportunity to put his case.
All other parties were represented by counsel.
The wife’s proposal
The wife’s concluding position was that there should be no contact at all between the child and the husband or with his parents. She submitted that there could be no meaningful relationship between the child and the husband because of his extreme antagonism towards her. Her argument was that if there was to be any contact, it would always have to be supervised. She also sought sole parental responsibility because of a litany of unpleasant events making any form of parental communication impossible about any decision but particularly major issues affecting the child’s long term future.
The wife’s position was predicated on the parental decision making process requiring some ability to negotiate and consult. Here, it was said there was no prospect of agreement. The wife pointed to court determinations in June 2012 about schooling and the overseas trip as evidence of that.
The Independent Children’s Lawyer’s position
The Independent Children’s Lawyer proposed that:
(a)the wife have sole parental responsibility but notify the husband by email of decisions concerning the health and education of the child;
(b)the husband’s time be supervised for three and possibly up to six months at a contact centre (which was the maximum period that the contact centre would allow) and such visits only be on a monthly basis;
(c)beyond the contact centre, contact be supervised professionally; and
(d)the paternal grandparents spend time with the child coinciding with that of the husband.
As an attempt to suggest to the husband that he might have something to offer the child , the Independent Children’s Lawyer submitted an order should be made that the husband have liberty to apply to vary the restrictions upon filing some expert evidence to show that he had been treated for the illness which has been recognised by Dr E.
The Independent Children’s Lawyer submitted the husband had shown a total lack of preparedness to undertake the treatment that he needed to deal with his deep-seated anger problems. Succinctly put, it was time for the husband to stop complaining about the wife and to focus on his own behaviour. I agree with that position.
The Independent Children’s Lawyer submitted that the presumption in s 61DA of the Act was rebutted on both a mandatory and discretionary basis because of significant family violence. It was put by the Independent Children’s Lawyer that the wife should not have to negotiate with the husband whose manner and tone were menacing and where he could not even control himself at court.
The Independent Children’s Lawyer expressed concern about the husband because months after the mid year adjournment, the husband had no work, no address at which to live, no plan for the future, was not attending his counsellor or psychologist and was self-administering his medication. I too have that concern.
Sadly, on the evidence, I have to agree with the perceptions of the Independent Children’s Lawyer about the husband and the risk to the child.
The husband’s proposal
The husband proposed an unrestricted relationship with the child but with a graduated (and short) build-up period.
He sought:
(a)equal shared parental responsibility; and
(b)that he spend time with the child from 3.00pm Friday until 9.00am the following Monday morning of each alternate weekend and from 3.00pm until 7.00pm on every Tuesday and Thursday for a three month period and then extending to overnight thereafter.
The husband rejected many of the things that had been said about him. He said there had never been family violence. His submission was that the absence of a family violence order supported that conclusion. For the reasons below, I reject that position.
The husband acknowledged the first periods with the child should be supervised but thereafter it should be unrestricted.
The husband’s parents’ parenting position and proposal
The husband’s parents sought orders that they spend time with the child for no more than four days per month from 10.00am until 4.00pm on each day and that their time be reviewable when the child commenced school. Initially they had proposed that they would supervise the husband but as I indicated above, in final address, sensibly, that was abandoned.
Their position was that even without the husband, they were a positive influence on the child. They currently live in Queensland and are retired but cannot be precise about coming to Melbourne to see the child.
The parents complained that during the intervening months of the adjournment, they had made attempts to spend time with the child but the wife had been unresponsive. To the extent the parents were criticising the wife, their proposed arrangements were vague and I would have hesitated to make the orders they sought.
The parents relied upon evidence of a number of the husband’s witnesses to whom I shall refer indicating that the husband was good with children and that they had confidence in the husband. That evidence was unchallenged but the weight I would give it was very limited.
Background to the financial proceedings
The husband’s bankruptcy brought his trustee into the hearing.
The focus of the financial dispute was a unit at Suburb L in the husband’s sole name and which he had sold after the proceedings had been started by the wife. Before the sale, and without consultation with the wife, he drew down against the Suburb L mortgage and paid his parents the bulk of the money. The parents have retained the money paid to them and when Suburb L was ultimately sold, the proceeds of the sale now in trust, were modest.
The trustee and the wife both sought to set aside the payment made to the parents. The parents claimed they were entitled to retain the money and indeed were owed more because they claimed a 50 per cent equitable interest in Suburb L by virtue of a trust. They maintained that all the husband had done was repay them some of their entitlement.
The application by both the wife and the trustee was under s 106B of the Family Law Act 1975 (Cth) (“the Act”) to set aside the disposition of the payment by the husband. Initially, the trustee in bankruptcy sought orders under s 120 and 121 of the Bankruptcy Act 1966 (Cth) but did not press them, relying instead upon the s 106B application.
This dispute therefore focussed on whether any trust could be construed from the parties’ action and that brought into sharp focus, the credit and truthfulness of the parties themselves.
The husband’s bankrupt estate consisted of virtually no assets but had substantial liabilities. It was acknowledged that any division of assets favouring the husband’s estate would not enable the bankruptcy debts to be completely covered.
Credit
The wife
The wife gave evidence twice. She was cross-examined by all counsel and the husband. To be cross-examined by the man whom I accept (for the reasons set out below) she perceives as a threat to her physical and emotional safety, was no doubt challenging. She handled the exercise with dignity. She was calm and gave thoughtful and rational answers. She was prepared to make concessions. Despite the husband’s accusations to the contrary, I found her generally a truthful witness. Where she was inaccurate in her evidence, I did not find her deliberately so. In respect of the financial issues, she acknowledged her evidence arose from her investigations after separation and from what the husband had told her.
In respect of the parenting issues, despite what I find to had been a harrowing obstruction by the husband, she persisted in endeavouring to maintain a relationship between the child and the husband. She now appears to have abandoned that endeavour. She wants the husband out of the child’s life.
The husband
The husband gave evidence twice as well. He is an intelligent and articulate man who holds a tertiary qualification but he was arrogant, rude, aggressive and at times, argumentative. It is said that trial judges have a unique opportunity to assess demeanour. The unusual feature here was the opportunity for the Court to witness what the wife was complaining about both during and after the relationship. The husband’s conduct particularly towards counsel for the wife showed the concerning traits observed by forensic psychiatrist Dr E.
The husband obfuscated and prevaricated. He was not responsive to questions despite being warned to focus on what he was being asked. At times he retreated into a statement that he was depressed or “not with it” but I saw no indication of inability to understand what was being said and done. He was simply aggressive. He was unable to remember some things but caustic about why he was being asked about others. His evidence was most unsatisfactory and his demeanour bordered on contemptuous. He blamed others for his own dilemma.
The husband’s mother
The husband’s mother was a loquacious witness. She too was non-responsive preferring to give explanations rather than answering questions. At times she resorted to justifying her son’s inappropriate behaviour which was difficult to accept. Her damning of the wife as dishonest was remarkably similar in tone to that of her son and on what I shall find, unjustifiable. In response to a justifiable complaint by the wife about the husband’s conduct, the mother thought the wife should simply grow up and get over it. For a woman of her intelligence, I expected better.
She described her own husband as a “victim of these proceedings” yet endeavoured to justify his breaches of an injunction because it (the injunction) had been placed on them by the “wife’s team”.
In relation to the injunction, the mother gratuitously responded to the wife’s counsel in cross-examination that it was the wife and her counsel who were “trying to steal” their money. Her view was that her husband had “weighed it (the injunction) up” and defied it but would have put the money back when necessary. This defiance enabled her husband to invest in the share market. Her position was as remarkable as it was untenable.
Without some corroboration, I would not accept the mother’s evidence.
Absent persons
As I shall discuss below, there were people who, in my view, could have assisted to resolve evidentiary dilemmas but they were not called nor was their absence satisfactorily explained.
It was distinctly noticeable in this case that the husband’s father was absent throughout. He was a party in respect of both property and parenting issues. His absence was explained by some sort of illness yet no evidence was called about that.
A person who was said to have witnessed a document that was to be evidence of the creation of the trust was absent initially on the basis that she was unavailable but then, as a result of the adjournment period, was said not to have remembered the signing. None of that evidence was in affidavit or any other form.
The husband’s brother was said to be a solicitor involved in various transactions giving rise to the asserted trust yet he too was not a witness.
The absence of these potential witnesses means no more than the parties chose to conduct the case the way they did but where the onus of proving something fell to one of the parties and there was potential evidence that might have assisted them, I have concluded that the evidence would not assist the person making the assertion.
Conclusion
For the reasons that follow, an order should be made that the wife have sole parental responsibility and that on a final basis, the husband’s time should be supervised indefinitely.
A relationship may be further developed between the child and his grandparents but because of the vagueness about their future plans, I find that they should have time with the child at the same time as the husband. To the extent that they consider the husband needs specific time with the child, they can absent themselves.
In respect of financial matters, I propose to set aside the husband’s disposition of the money to his parents and direct them to refund the entire sum immediately. Thereafter, it is just and equitable to make an order dividing the property between the wife and the trustee in the terms set out in the orders.
Because of the importance of the parenting case, I propose to deal with that first and later in these reasons, return to the financial matters.
The Law
The law to be applied in this determination is that set out in Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration.
The objects and principles of Part VII guide the determination of the assessment of what is in the child’s best interests. Section 60B urges the court to ensure that children:
(a)have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with their best interests;
(b)are protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(c)receive adequate and proper parenting to help them achieve their full potential; and
(d)have their parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The unambiguous theme of s 60B is that it is important for children that their parents have a significant role in their development providing them with not just physical needs but also giving them security which brings confidence and trust along with consistency of lifestyle and protection from the exposure to harm. I have great difficulty working out how the child can have an unrestricted relationship with the husband and his family and I bear in mind the guiding hand of the legislature in the objects and principles set out above.
The Court is mandated by s60CC to consider a number of things which direct attention to what is in the child’s best interests. They are:
(a)the benefit of the child having a meaningful relationship with both of his parents;
(b)the child’s protection from physical or psychological harm through the exposure to abuse or family violence; and
(c)a series of other important factors about which I make findings below.
One troubling aspect of this case is that I find there has been significant family violence and not just during the relationship. It is hard to see a child benefiting from having a meaningful relationship with both parents if he is exposed to abuse or family violence. Because the focus of Part VII is about the rights and interests of the child, the Court must try and find a way to ensure that the child is protected so that a relationship can be fostered. Unfortunately here, there is no simple solution.
The presumption
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That presumption is rebutted if there are reasonable grounds to believe that a parent has engaged in family violence. That in turn requires the Court to consider the definition of family violence. In s 4 of the Act, family violence was defined as:
Conduct, whether actual or threatened by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
I find the husband has been violent to the wife giving rise to a reasonable fear on her part for her safety. She now desires to have nothing to do with him. It is said that leopards do not change their spots. The husband said that his admitted conduct did not warrant the wife’s fear. I reject that.
It is important not to lose sight of the fact that this is a hearing about the child’s future. The relevance of family violence in this case is that if the child is to grow up in an environment where his mother is dominated, disrespected and denigrated and where she lives with fear of the husband, the child would have an unacceptable parent as a role model. (See Khalil and Tahir-Ahmadi [2012] FamCACF 68 and the discussion at paragraphs 189-190).
Violent and abusive behaviour undermines confidence and trust in the parent on the receiving end of it. In turn, cooperative parenting is at best restricted and at worst, destroyed by family violence. These concepts guide the determination of the decision-making process of shared parenting. Joint or shared parenting requires a consultative approach to decision making. If the confidence and trust have been destroyed, there is little prospect of cooperative decision-making nor is there much prospect of the parents reaching consensus through mediation or using intermediaries to negotiate important decisions. That is particularly so where there is a power imbalance which is underpinned by fear.
Even at the Court’s bar table, the husband loudly proclaimed the wife to be a liar. In the witness box, during cross-examination, he was aggressive and combative. He described email correspondence sent to his former lawyers from the wife’s lawyers as “shit”. Despite being in a court room where the scrutiny was on his behaviour not to mention the presence of his mother, he was arrogant and aggressive. I find that is the way he would deal with the wife and he would not be troubled about what he did or said in the presence of the child. Because of the child’s vulnerable age, it could not be wise to have the husband unsupervised around him. I return to that issue below.
On the findings from the evidence below, I am satisfied that the husband has created the fear in the wife as a result of his conduct. On that basis, the presumption of equal shared parental responsibility is rebutted. Even if that were not so, I find on the evidence below that the interests of the child would be prejudiced if there was an order for equal shared parental responsibility. On that basis, I would exercise my discretion and rebut the presumption.
The evidence of Dr E
The expert evidence of psychiatrist Dr E was that with unrestricted time, the child would be at risk of harm in the care of the husband. That opinion only has validity if it is supported by the evidence upon which it is based. Both the wife and the Independent Children’s Lawyer urged me to accept the evidence of Dr E whilst the husband and the paternal grandmother urged its rejection.
When Dr E was called to give evidence, I questioned all parties about whether they accepted his qualifications as an expert. No-one disputed that expertise.
It is still important however to determine whether the opinion is supported by the findings (see Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705).
Dr E is a consultant psychiatrist. He was asked to assess the psychiatric health of both parents.
Of the wife, Dr E noted no relevant forensic history. No evidence was put before me to contradict what the wife told Dr E. The wife acknowledged recreational cocaine usage “some years” before the pregnancy of the child. That too is consistent with the evidence despite the husband’s protestations to the contrary.
Of the escalating conflict, Dr E noted the wife’s description of increasing fear and feeling unsafe. Of her affect, he noted at one point, she became tearful. He thought her memory and concentration was intact and that she had insight. His diagnosis was that the wife did not suffer from any psychiatric condition.
Nothing in Dr E’s evidence about the wife would concern me having regard to her unchallenged position as the main carer of the child.
Of the husband, Dr E noted that he was prescribed Lexopro to settle his stress problems after the breakup of the marriage. He described the history given by the husband about attending a behaviour change course but was of the impression that the husband saw that as benefitting the management of his staff rather than his personal development after the marriage breakup. That evidence is consistent with the husband’s view that he does not need professional help about his anger. It is certainly consistent with what I witnessed in the courtroom.
Again, it can be seen how the husband lacks insight. The hearing had to be adjourned for several months to complete the financial aspects because of the husband’s bankruptcy. On returning to the witness box, he confirmed he was still taking Lexopro. He said that he increased his intake to help him cope with his emotions when concluding his time with the child; that is, he decided what he could take. It was apparent in the courtroom that he had difficulties controlling his emotions. In the adjournment period, he had not returned to see his psychologist who he said had helped him with relaxation techniques. Thus what Dr E observed was what I observed.
Dr E listened to a recording provided to him by the wife. That September 2010 recording has been admitted into evidence. The husband initially objected to its admission but then candidly admitted that he had not listened to it. It transpired that a copy of the recording had been provided to solicitors who had been acting for him but he had not accessed it. By the time it was played in evidence, the husband had listened to it and at no stage, denied his voice was on the tape. It became the subject of significant cross-examination of both husband and wife.
What Dr E heard was the same recording played to the court. Dr E thought the husband behaved with sadistic overtones. He was troubled by the husband’s statements about taking the child away so that the wife would not see him again. He thought that the account was more menacing than that given by the husband. I have to agree.
The husband thought that Dr E was biased and had formed his opinion on incorrect facts.
Dealing with bias first, Dr E gave his evidence objectively and responsively. He read what he was provided and examined both parties. He listened to the tape recording but did not play it in front of the husband. I do not find that he prejudged anything at all because he gave the husband an opportunity to discuss a whole range of things. Dr E made his observations as an expert. Having regard to the evidence that the husband gave about that tape, any assertions about bias fall flat.
The husband also expressed concerns about the accuracies of Dr E’s evidence in two areas. First, it was said by Dr E that the husband had only one friend. In cross-examination, Dr E said that the husband told him he was a “loner”. Secondly, Dr E said that the husband had had problems in his childhood. All of those facts came from either the husband or the notes of a psychologist Mr M upon whom the husband had attended. I accept that Dr E understood the husband to be saying that he did have few friends. To the extent that Dr E may have misunderstood what the husband was saying or that the concept was poorly communicated by the husband, Dr E added that it would not have significantly altered his opinion.
As to the issue of the husband’s childhood, the husband’s mother had given evidence (as had the husband), dismissing the suggestion that there were problems. Dr E was given notes from subpoenaed material of the psychologist Mr M upon whom the husband had attended. The husband’s argument was that Dr E not only misinterpreted those notes but that he had relied upon the observations of a person with whom the husband had had no rapport and with whom he ultimately fell out. Whilst Mr M was not called as a witness and his notes were not tendered in evidence it was clear that Dr E had drawn on the history provided by the husband to Mr M. It was not suggested by the husband that he had lied to Mr M. The husband had access to those documents.
One issue in this case concerns an assertion by the wife and another witness that the husband attacked a security guard on the night of the parties’ engagement party. Of that incident, Dr E wrote that the wife reported that the husband took a knife from the kitchen and held the security guard up against a wall. The husband maintained in evidence that the incident had not occurred at all. However, the following evidence appeared in Dr E’s report:
[Mr Pedrana] emphasised that this was an automatic response to threatening situations and was unclear as to how he could unlearn this behaviour.
Dr E had obtained the details of the violent behaviour of the husband from the wife and it was clear that the husband was asked about it and his response could only be read as an acknowledgment that the incident did occur. When Dr E was asked more detail about the husband’s response, he said his recollection was that the husband denied using a knife. The accuracy of the husband as an historian also does not assist him. He admitted that he had been affected by alcohol and certainly was a cocaine user at that time. Importantly, the husband who came well prepared to question Dr E, did not challenge his recollection about the assessment interview nor did he dispute the assessment about the wife.
Dr E was asked to consider whether things might have changed because of the lapse of time since his July 2011 opinion. He made two important observations. First, the trial affidavits of the parties showed that the husband had been angry on a number of occasions since his assessment interview. He thought that if the allegations were true, the anger “spilled over”. His view was that the husband’s anger was deep-seated. It had been there a long time and had become part of him. That being so, the second question was whether that problem could be treated. The husband asked Dr E to read a letter from a man described as a treating psychologist. The letter said he had made progress and that he had learned techniques such as relaxation. Dr E read the letter and responded that it would not satisfy him. The techniques of the psychologist were described by Dr E as “standard” for “all manner of symptoms”.
In Dr E’s view, if there was to be a therapeutic process, it had to be reality tested rather than self-reported or self-regulated to assess its effectiveness. He added that if the husband had no insight, will or commitment to solve his problems, then attending the psychologist would be a waste of time. I accept that evidence.
Dr E’s assessment was that the husband felt justified in his actions and gave as an example that he was blaming the wife for the things happening to him. That conclusion is well-founded having regard to the husband’s affidavit in paragraphs 114 and 115 both of which were read to Dr E. The husband said:
114.I believe the supervised visits for myself and my parents are unjust and unwarranted. This enforced supervision is based solely on lies concocted by [Ms Roberts] and her preparedness to use [the child] as a pawn for her own benefit. Whilst I fully understand the Court’s duty to ensure children are protected, there is no evidence, other than [Ms Roberts’s] and her sole friend’s baseless allegations and lies. Neither I nor [N Agency] nor the staff at [C Contact Centre] believe I am a parent that requires supervision.
115.On the basis that all allegations resulting in supervision being implemented are unfounded and false, I dispute that supervision is required. [Ms O] also commented on the obviously healthy relationship shared between the child and myself as referenced in “NAP5”. As [Ms Roberts’s] allegations were unfounded and invoked out of spite, I propose she be deemed liable for the costs I have had to incur to date.
In Dr E’s view, the husband had to have a desire to change and the treating professional had to be experienced enough to deal with the husband but both treader and husband had to have a mutual commitment to see the matter through. Obtaining this assistance was not as simple as it sounded. As Dr E said “Many are called, but few are chosen” and this therapy was difficult.
Dr E was concerned about the husband’s behaviour and felt that it had to be treated if he was going to be involved in the child’s life.
As to how that deep-seated problem affects the husband’s parenting capacity and consequently the question of the child being at risk, Dr E said:
When things fall apart for (the husband), he can become quickly depressed and in those circumstances, may be a suicidal risk. Thankfully, he does continue at this time to receive some psychological treatment, the nature and depth of which is not clear at this time. That treatment has allowed him to develop some management skills with his employees and his work provides him with a sense of structure and purpose.
In the June 2012 hearing, the husband maintained he had ceased the psychological assistance because of his financial position. The November 2012 hearing resumption saw a different picture. The husband acknowledged he was depressed and self-medicating and he thought he would go back to the psychologist if he felt he needed assistance after these proceedings were finished. He endeavoured to dictate the terms by saying that it would be on condition the Court imposed a prohibition on anyone accessing the notes of the person treating him so that his privacy could not be invaded. Sadly, the husband missed the point about his need to address his problem.
That raises the question of what risk there might be with the child being in the care of the husband. On that, Dr E went on to say:
Whilst at all times he appeared positively disposed to and caring towards the child and does not pose a risk to his son in current circumstances, his lack of insight and understanding of what his anger is about, where it comes from, how dangerous it is, and the menacing way that it presents, represents a risk to his ability to care for [the child], should [the child] for some reason provoke him.
At the moment, there is no risk to the child because the time between the husband and the child has been closely supervised. The husband rejected Dr E’s view and does not see a need for any treatment because he has now learnt the relevant techniques. I reject that he has learned anything and find that he has certainly not changed.
Dr E finally said:
The Court will need to address those matters in respect of [Mr Pedrana’s] ability to parent his son safely. In those circumstances, it would be my opinion that [Mr Pedrana’s] care of [the child] occur in the context of ongoing psychiatric and psychological counselling.
There has been no psychiatric treatment and the counselling is questionable having regard to the comments of Dr E on the report that the husband himself provided as to the nature and extent of the counselling treatment.
Having regard to the evidence below and the consequent findings upon it, Dr E’s opinion is soundly based and powerfully persuasive.
The relevant background
Even the background of this dispute was contentious. The wife is a 31 year old healthcare worker. She has recently had a baby to her new partner. The husband is 34 years old and was a company director of his own business but is now a bankrupt. I am unclear about what work the husband is now doing because he was evasive.
It was the wife’s case that the relationship began in 2003 or 2004 but the husband said it was not an exclusive relationship. He described it as “friends with benefits”. His evidence was that at the start of the relationship, he would have described himself as “a bit of a gigolo”. He was a sport instructor and the pay was poor so he got the “benefit of the girls” at night and there were many of them.
In a scurrilous statement, as if to disprove the start of the relationship from the wife’s perspective, the husband alleged that she had had a variety of relationships. This statement was made after the wife had been cross-examined and the husband had not raised the assertion with her. It was not put to her in circumstances where she had described both of she and the husband in this same period as being monogamous. Obviously she was wrong about the husband and her trust in him was misplaced.
One might be tempted to dismiss the husband’s statement as self-aggrandisement but I also have the evidence of the husband’s mother who saw the husband as having something of a problem saying that his attraction to women got him into trouble.
I have generally preferred the evidence of the wife and as such, find that she was committed to the husband in about 2004 and the relationship in the cohabitation sense, began about then.
The child was born in August 2009 and the parties married in July 2010.
The relationship came to an abrupt end in February 2011. From the wife’s perspective, the relationship was in trouble late in 2010 but she still endeavoured to get the husband to resolve what she perceived to be his own personal problems.
The husband found the separation bewildering. It is hard to discern exactly why he did not anticipate the relationship’s end having regard to his conduct at that time.
Standard of proof
The standard of proof in this case is the balance of probabilities. Having regard to the serious nature of the dispute, I have applied the provisions of s 140(2) of the Evidence Act 1995 (Cth).
When the case began, I discussed with the practitioners and the husband whether I should also treat the circumstances of the parenting case as exceptional and require the application of the rules of evidence. There was little enthusiasm for that course. Needless to say, I have adopted a cautious approach and concentrated on relying on evidence that could be said to be relevant. To be relevant, the evidence must be capable of rationally affecting the probability of the facts in issue and in this case, there were many.
The wife’s evidence
Parenting issues
The wife did not dispute the child’s current relationship with the husband was good, and that he had the capacity to look after the child under supervision. She initially acknowledged the importance of a father in the child’s life but by the end of the case, that had changed to almost a resignation that there would be no change and that the child was better off without the husband in his life.
The wife described the husband’s two different personalities. The first was one that was quick to anger but she said she had been able to manage and control that throughout the relationship. Even in confrontation with other people, by holding him and looking into his eyes, she seemed to be able to calm him down. Bearing in mind the evidence of Dr E, I find there is a risk that absent the presence of the wife, a testy M would be hurt.
The second personality of the husband was described by the wife as “eerie” where his facial expressions, taunts and behaviour were frightening. There was no rational explanation for them.
The relevance of these “personalities” was that the wife had not been concerned about the former but very troubled about the latter and in respect of some of the events in this case, the latter was what she saw.
The wife pointed to incidents where day care decisions had to be made and the husband brushed her off and said “what ever”. She pointed to her letter about enrolment of the child at a particular school and kindergarten but the husband deflected the issue saying the matter could wait for court.
An example of the attitude that the husband took can be explained in the following. The husband was spending time with the child under supervision. Somehow, he managed to take the child to a hearing specialist because he was of the view that there was a problem. The supervisor inappropriately was a party to that arrangement. The wife was not told about it even by the supervisor but she learned from a letter from the husband’s solicitor. Audaciously, the letter advised well after the event that a hearing specialist was of the view that a follow-up appointment was needed and the wife should attend to it. The wife said that she had noticed a behavioural change in the child around that time but could not work out why. To her credit, rather than simply ignore the husband’s solicitor’s letter, she attended upon the hearing specialist where the child became distressed. She concluded that he had been frightened by a medical practice machine and that explained his change of behaviour because in her view, which I accept, he had become terrified as he was about to endure it again. As a parent seeking a sharing of responsibility, I find the husband’s conduct irresponsible.
The wife acknowledged her own recreational use of cocaine prior to the birth of the child but not after. In a bizarre piece of theatre, in cross-examining the wife, the husband acknowledged that he had been using alcohol and drugs at the time of a recording to which I turn below and put to her that she had been doing likewise. The wife’s denial was emphatic. I accept that denial. She acknowledged a previous inability to discern the line between drunkenness and being happily affected by alcohol and had consequently changed her habits. I accept she now does not use drugs or abuse alcohol.
Unfortunately, not all of the wife’s evidence was in her affidavit. That does not mean I do not accept her version of the history. She impressed as not being a person with an eye for detail. It was only when the objective cross-examination by counsel for the Independent Children’s Lawyer occurred that I had a sense of the true detail of the parties’ relationship.
The husband’s cross-examination of the wife focused on inaccuracies in dates rather than detail. Those inaccuracies do not, in my view, affect her credibility.
The husband’s behaviour during the relationship
In or around 2006, the husband considered the wife a “tenant” renting a room from him. His water bed broke so he agreed to use hers. In an endeavour to dispose of the water, the wife saw the husband in the bathroom vigorously stabbing the bladder with a knife describing in a frightening way, what it would be like to stab someone. She described this as the first of the “eerie” incidents. This incident was not referred to in her affidavit. In evidence in chief when I prompted him, the husband said that he remembered something about asking for a knife. At no point in his evidence did he deny the broken water bed, the sharing of the wife’s water bed, the emptying of the water bed bladder or the wife’s description of the stabbing of the water bed bladder. It was curious that the husband and his “tenant” would be sharing the water bed thereafter. I find the wife’s version about the water bed stabbing true.
The engagement party
Another incident occurred at the conclusion of the parties’ engagement party. After being at a hotel, the husband and the wife and some friends returned to the apartment where an incident occurred involving a security guard. This incident too was not referred to in the wife’s affidavit but elicited in cross-examination by counsel for the Independent Children’s Lawyer. The wife said that she was inside the flat and heard an argument involving the husband outside. She found him holding a security guard and calmed him. This incident was referred to in an affidavit of Ms P. Her affidavit was sworn on 13 March 2012. Ms P was cross-examined. There can be no doubt that the husband was aware from March 2012 about the allegation. This was also an incident referred to by the wife to Dr E in August 2011. Dr E confronted the husband about it and the husband answered as I have indicated earlier.
The husband’s evidence was that no such incident occurred. I am satisfied it did. He complained during the hearing that I would not permit him to call evidence about this but having regard to the evidence of Dr E, I did not consider the husband’s proposed witnesses could advance the matter.
The tape recording in September 2010
An incident in September 2010 arose out of an argument. It was taped by the wife on her mobile telephone. At the start of the trial I ruled the evidence should be admitted. The husband acknowledged a transcript provided to the Court was largely accurate. The transcript does not do justice to what occurred. Listening to the tape and even factoring in the possibility that the wife was baiting the husband, it was chilling. There was no clear indication at this time that the relationship was ending even though the wife was frustrated by the husband’s behaviour. It is therefore not reasonable to find that the wife was deliberately setting out to be mischievously baiting the husband and taping him or collecting evidence.
It was the wife’s evidence that the husband was cleaning up a glass that he had thrown against a wall. The husband told the wife that she was “leaving” and that she would not be taking the child. Despite her plaintiff pleas, he was threatening in his tone. It was clear that he intended her departure to be immediate. He then talked about “going away” with the child and the only inference open was that she would not see the child.
This was an incident that the wife described as “eerie”. On any objective analysis of the taped conversation, it was not a normal argument. It was serious and concerning.
The wife said that the taping stopped because her battery ran flat. It was the wife’s evidence that subsequent to the battery running out, the husband talked of a murder-suicide if someone attended the apartment. The husband denied that part of the conversation but two significant things convince me that it did occur. First, the taped conversation showed that the wife went to the telephone to ring the police and the husband pulled it from the wall and the second was that it was common ground that she went outside the apartment in tears because it was pointless to argue further. In an unusual piece of cross-examination, counsel for the husband’s mother put to the wife that the husband did not pull the telephone off the wall but that it was accidentally knocked off. That was never suggested by the husband in cross-examination. The mother’s evidence was that she had previously seen the telephone knocked off the wall. I am satisfied on listening to the tape that the husband took it from the wife and pulled it from the wall.
It is more sensible for me to deal with the precise details of what happened in that argument when I deal with the evidence of the husband. Suffice to say, the wife convinced me that it was a distressing and threatening time.
Subsequent to the taped conversation in September, the parties’ relationship limped on. The next day, the wife raised what had happened and asked the husband to get help. He was said to have been apologetic but he then accused her of provoking him by saying that she would leave him. His response was that he could not live without her. She said she would give him a month to sort himself out. To the extent that the husband denied all of this occurred, it is corroborated by the fact that over the ensuing weeks, he did endeavour to get help.
The wife was asked by the Independent Children’s Lawyer why she had waited from September to February to leave the husband if the threat was as dire as it sounded. The wife said she did not know what to do or to whom she could turn. I take into account her parents were in Queensland and she had a very young child. The tape showed that the husband was not going to allow her to take the child away. I take into account also that she did not want the relationship to end but rather for the husband’s anger problem to be fixed. As evidence of that, she attended the husband’s doctor with him.
The separation
The wife thought the relationship came to an end towards the end of 2010. The husband asserted to her that she had left without warning because she was having an extra-marital affair which she denied.
It is clear that the taped incident was the impetus for change. Nothing I heard suggested there was any other reason for the ending of the marriage than the husband’s violence.
The wife had initially also relied upon subsequent transcripts of telephone conversation but they were not pursued by her. Evidence was not led in relation to those matters.
The wife’s evidence relating to other violent incidents are best dealt with under the hearing of the husband’s evidence to which I shall now turn.
The husband’s evidence
The husband began his oral evidence emphatically denying the events at the engagement party referred to by the wife. Despite that emphatic response, he later acknowledged “hazily” recalling “parts” of the night. That gave me little confidence about his recollection particularly where he accused others of lying.
The husband denied “most of” the conversations asserted by the wife’s mother about events after separation and his lack of interest in the child before separation. He agreed there were conversations but as to the detail of the content, he differed from the witness. In my view, it matters little but to the extent that a finding is necessary, I accept the version of the wife’s mother. My reasons for so doing will become apparent below.
The husband denied that the wife was frightened of him or that she had any reason to be frightened of him. The evidence of the wife’s mother is therefore significant because the husband confirmed a conversation with her in which she expressed concern about what was happening to her daughter. Indeed, she warned him that unless he changed, he would lose his wife.
As to the wife’s allegations, he said there was “no real proof’ by which I understood him to mean that there was no objective corroboration. When given an opportunity to elaborate about the evidence that came from the taped conversation he said that the reference to a murder-suicide offended and angered him but that was, as he was quick to point out, because there was no recording of that statement. The husband asserted that the wife was making it all up. His evidence has little weight because of his own admission about his physical and emotional state that night. He was a poor historian.
I have earlier set out paragraphs 114 and 115 of his trial affidavit. Those paragraphs were indeed struck out at the commencement of hearing on the basis that they were comment, opinion and irrelevant. The husband had difficulty understanding that they were used for cross-examination purposes by other people. Having had them struck out, they became evidence again when he persistently adopted them. I find his attitude to parenting and to the wife is as indicated in those paragraphs.
The husband said the evidence presented by the wife was contrived to “exacerbate the stress she knew” he was experiencing after the separation. He said the tapes were a “means” to deny him access to the child. He said the wife was manipulating the court system. I reject all of that. I find the wife was a genuine witness whose focus was on the child. Rather than being contrived, the taped conversation on 24 September 2010 was chilling and showed his dominance.
The husband’s view about conflict was interesting. He said he had learned from a course that it was better to make the other parent leave in a confrontation. That was how he justified the statements he made in the September taping incident. He acknowledged that he had been affected by drugs and alcohol and that explained his poor memory. In a bizarre piece of evidence and using an analogy, he explained his state on that night to be similar to that seen in police television advertisements about drugs and driving. Apparently, the driver sees the blue-shirted police as blue fairies. The husband said he came in and out of a state of consciousness. This was the parent who wanted his wife to leave the apartment to defuse a confrontation and leave the child in his care where he was affected by drugs. That showed a serious flaw in his sense and understanding of parental responsibility.
Cross-examination on the tape
The tape was played whilst the husband sat in the witness box. Sequentially, as the pieces were played and he was asked to explain, he blamed the wife for the incident as it unfolded.
He was asked whether, as a result of counselling subsequent to separation, he had learned anything. He said he had learned to look at things a bit more objectively. It was put to him that he had failed in that because he saw all of the problems as being the fault of the wife. He denied that, candidly acknowledging that he had taken account of his actions but then added “it takes two to tango – she and I are as much a culprit”. There is nothing in the wife’s evidence that would enable me to find that she has a culture of goading the husband, setting him up or conducting herself in a lifestyle inconsistent with sensible parenting of a young child. I make that finding even taking into account the evidence of the husband’s mother which I find unreliable. The evidence about the husband’s attitude is consistent with what Dr E saw and upon which he expressed his opinion.
In relation to what started the wife’s taping, the husband denied he threw a glass against a wall as alleged by the wife. He claimed it was accidentally knocked off the couch. Affected by drugs and in an angry state, the husband must be seen as an unreliable historian. I find that he threw the glass.
As for the incident itself, husband said the wife had been badgering him “quite offensively” so he asked her “politely” to leave. I reject that. The tape is self-evident. His denied being angry when asking the wife to leave. I reject that; the clear cutting tone of his voice shows that he was quite threatening.
When asked about his voice, the husband volunteered that he was quite drunk (as distinct from being affected by drugs). There was no apparent slurring of words or incoherent expression of thought that one might have expected from an intoxicated person.
The husband was heard saying to the wife that the child would not be in the house the next day. When asked in cross-examination what those words meant, and in particular his statement to the wife “you’ll be gone”, he responded that he did not know what he meant. He then added that he could not “remember in that state of mind”.
As to his statement that he would physically remove the wife from the residence if she did not leave, he said he intended to pack her clothes, give her the car and an overnight bag so that she could go away and think about “it”. This was consistent with his philosophy that in a volatile situation, the wife should have left the scene. He gratuitously said that this happened quickly and the wife was not feeling threatened. He added that she had consumed drugs and alcohol and she could not take the child because she was drunk. That perception is curious if he was giving the family car to a drunken person.
The husband was asked about his laughter heard on the tape which in context only adds to the eeriness to which the wife referred. His explanation was it was “side show Bob” laughter. He endeavoured to explain that as a sort of laughter in which he was indicating to the wife that she should “get back to reality”. I understood that explanation to be a form of sarcasm but having heard it, I find he was sarcastic and threatening. I therefore reject the husband’s view that it was some sort of coded message to the wife.
Even if he thought this to be just a domestic argument or “spat”, it does not explain his statement that if she called the police, he would “stab” them. On the tape, he added an invective which made the statement more chilling.
Having told the wife she could call the police, the telephone can be heard crashing. The husband’s view was that it fell because the handset was not on the wall properly. On any view of the tape, the conversation indicated the opposite. I find the husband snatched the phone from the wife. I do not need to deal here with the precise details of what the wife said happened thereafter because I accept her version. The husband was a very unreliable reporter having regard to his condition at that time.
Drugs and alcohol
In the period subsequent to the taped incident, the parties remained together but the relationship was fragile. During this period, the husband’s mother said she spoke to him. Her evidence was that she was aware of the drug usage in the household. Her parental advice or criticism was simply dismissed by the husband.
The behaviour during the taped incident was not isolated. The very nature of the parties’ relationship after they married was unusual. After their honeymoon, the husband’s view was that it was like “friends with benefits”. He was unable to explain how the parties lived other than that “we were together but separated”. When asked about being separated under the one roof, his illuminating answer was that they were “in a funny sort of way, separated”. Having regard to the wife’s evidence, there was nothing funny about that particular period and I find that the wife was well entitled to be apprehensive about the husband’s violence and anger. On his own evidence, he was using drugs and alcohol and that was a dangerous cocktail in the household where the child lived.
Other allegations relating to violence and anger
The wife also gave evidence of an assault on her brother where the husband threatened the brother with a knife. The husband denied it and observed that the brother was not called as a witness. Because the allegation is sufficiently vague and nothing corroborates it, I will not take it into account. I do not consider it is of sufficient importance or affects the wife’s credibility to make any finding about it.
The wife also asserted that the husband kept an iron bar by the bedroom door. He asked her to describe it. She did and he asked her how it got there. She responded saying that he put it there. The subject went no further. Although the husband denied there was such a bar, I accept the wife’s version based on my general acceptance of her being a reliable witness.
By December 2010, the husband had attended a Dr Q. That doctor noted depression, anxiety and was preparing a health plan. The husband was dismissive of the importance of these visits and it was his view that he was seeing a Dr R for marital problems. Despite that, when the separation occurred, the husband said he was surprised.
On the wife’s birthday in January 2011, a party was held for her at a restaurant. A number of gifts went missing. The wife said that she asked the restaurant about them and the husband became angry and grabbed one of the employees and held him against a wall. She said that she put her hands over his eyes to calm him down and eventually the issue subsided. Curiously, it was the husband’s evidence that the altercation was between the wife and the staff member. I accept the wife’s version of what occurred.
When in February 2011 the wife made a decision to leave, she had to go back to the apartment with police and her brothers because the husband told her she could not take her belongings.
In July 2011, five months after separation, the husband was recorded making an abusive telephone message to the wife. When he was asked whether he had been drinking and/or using cocaine before making the telephone call, his response was that he did not think that he was affected by drugs but “maybe a drink or two”. He conceded he was angry. Thus, in July 2011, there was no sign of the husband’s anger abating.
Falling out with people
The husband’s second period of cross-examination was also enlightening. He was cross-examined about inaccuracies in a series of his own affidavits in earlier hearings. The errors were obvious and at times, tended to mislead. However, in each case, the husband peremptorily dismissed the importance of the cross-examiner’s point by saying it was another example of the incompetence of his former lawyers who drafted the documents. The husband had two different lawyers and it would seem from his perspective, they were tarred with the one brush. What he did not acknowledge, even despite my specifically drawing it to his attention, was that he had sworn the documents to be true. I find his abrasive personality will not countenance any view other than his own.
What is the state of the husband’s mental health?
When asked why no evidence was presented from his treating health professional Dr R, the husband said that he could not afford it. He had been warned by the Independent Children’s Lawyer that if he wanted to rely on someone such as Dr R, the witness would be required for cross-examination. The husband’s response was that because of his financial position, he could not call Dr R. In the context of having his mother represented by counsel and having paid her a large sum of money only a year before, that response was puzzling. It was more so when he had several months to make arrangements.
The husband’s cross-examination of the wife
The husband put to the wife:
(a)she had avoided the s 60I requirements by alleging violence and that there was no evidence of violence because she had not sought a family violence order;
(b)she had failed to lodge her passport pursuant to the court orders;
(c)she had thwarted his time at the childcare centre;
(d)she had endeavoured to thwart his time with the child by refusing a contact arrangement which was three hours away from where she lived;
(e)she had been violent towards him and provoked him in recorded conversations;
(f)that the September recording had been preceded by a threat by her to never let him see the child again; and
(g)She had tried to “bribe” him after separation into signing over sole parental responsibility;
The wife was unequivocal. She said she had:
(a) not surrendered the passport but had left it with a girlfriend;
(b)slapped the husband on one occasion in an argument but had otherwise not provoked him;
(c)used drugs recreationally before the pregnancy of the child but not subsequently;
(d)not been drinking on the night of 24 September 2010;
I found the wife generally to be a witness of truth, albeit at times inaccurate as to dates. The assertions about the wife endeavouring to bribe the husband over parental responsibility and his assertion that she contravened an order to enable his contact at a day care centre are of so little relevance to this parenting dispute that I propose to ignore them.
Proceedings after separation
Proceedings began soon after separation. A determination was made by the Federal Magistrates Court on an interim basis which included some supervised time.
Shortly after the interim hearing, the husband removed the wife’s car. When asked about this, he said that it was the company’s car and the administrator of the company had insisted that it be returned. However, with the car, went the child’s seat and despite requests by the wife for their return because of the child, the husband refused. His curious explanation was that it was his property and he had bought it. The wife was obliged to hire another car and purchase another baby seat. Even when given an opportunity to explain all of this in cross-examination, the husband showed no insight into the problem that he created.
Despite the court orders, there were problems over the implementation of contact yet the wife continued to negotiate arrangements. The husband was reticent to give the wife any credit for that. He had to be taken to court orders which showed that specific named supervisors were replaced with people with whom she agreed.
The wife used lawyers to negotiate and in my view, justifiably so because when she approached him directly, he became angry and abusive. In cross-examination, he was challenged about their discussions and he hesitatingly accepted that he may have been angry. He acknowledged using words along the lines of “suck my dick”
An example of the husband’s self-centred behaviour can be seen in his suggestion that contact take place requiring the wife to undertake significant travel. He saw no difficulty with that having regard to the fact as he described it that she “dumped” the child in day care whilst she worked.
At a handover, the husband pinched the wife on the bottom and endeavoured to kiss her. He vaguely denied that but I accept the wife’s versions. She deposed to the fact that he treated her as his property and she felt fearful and uncomfortable. The husband did not see any problem with his conduct.
At a handover as late as early 2012, the wife complained to the supervisor that the husband had “mouthed” the word “slut” and on another occasion, the supervisor had asked the husband not to talk to the wife about issues that were clearly inappropriate.
In October 2011, he telephoned the wife and questioned her about her new partner. Despite the fact that Mr D filed an affidavit in these proceedings describing himself as the wife’s committed partner, the husband continued to describe Mr D as a “tenant” of the wife. When asked about that, he endeavoured to explain it as meaning that he did not really understand the nature of the relationship between the wife and her new partner. I reject that and accept that it was intended to be pejorative.
In 2012, the husband’s time with the child was supervised by a commercial provider but his money ran out. He then requested that C Contact Centre take over and the wife agreed. His complaint about the wife was that she delayed that transition. There is no evidence of that.
Other witnesses
The wife’s mother
The wife’s mother gave evidence. Her affidavit had been filed but it had a page missing and the husband objected to a substitute page being used. I permitted counsel for the wife to lead evidence beyond the one page in the affidavit.
The wife’s mother had spoken to the husband before final separation warning him that if he did not get help, he risked losing his wife. She said he did not deny what he had done but indeed said he would seek help. When she asked him later whether he had been for help, he acknowledged that he had but he said he did not think it was helping him.
The wife’s mother lives in Queensland and said she spoke to her daughter on a weekly basis. Her assessment was that her daughter was frightened of the husband. I accept that evidence.
The evidence of this witness otherwise amounted to conclusions about the capacity of each of the husband and wife based on generalised observations. Those were largely unhelpful.
She said that if the wife went to the shops and asked the husband to care for the child in her absence, he would tell her to take the child with her. She said he was not interested in “participating” in “feeding times”. Yet, it was the wife’s evidence that she was breastfeeding during that period. I am not sure what conclusion I was to draw but it indicates a level of partisanship rather than objectivity.
The wife’s mother observed one handover where the husband was abusive and threw a toy at the wife. The wife tried to calm him down. This contact was supervised. The husband denied throwing the toy. I have no doubt he did.
The husband’s mother relating to parenting.
The objective evidence disclosed both paternal grandparents had a good relationship with the child until the day care centre ceased an arrangement under which, they agreed to supervise the husband’s time with the child.
Whilst the husband’s mother (“the mother”) had initially offered to supervise her son’s time with the child, her antipathy to the wife would have made that untenable. In evidence, she said that the wife should “act like an adult”, move on and “get over it”. That insensitivity must lead to a lack of trust by the wife in the mother as a supervisor and the protector of the child.
The mother knew of the husband’s drug usage in respect of Ecstasy and marijuana but only seemed shocked about the cocaine use. Her attempts to discuss drug usage with the husband had been dismissed by him. When the news of the breakdown of the marriage occurred, the mother agitated for her son to get counselling and medication. It seems her influence eventually had some impact. She then came to Melbourne and began to be involved with the child at the day care centre.
The day care centre incidents
The mother was present when a confrontation between the husband and day care centre director Ms S occurred. In an odd way, the mother said she intervened and described her actions as that of a teacher dealing with errant children directing them to separate from a fight. She proudly indicated she had been successful. Ms S did not have the same view and of the two versions, albeit not significantly different, I prefer the objectivity of Ms S.
The mother organised the husband’s attendance to collect the family dog. It was done with the permission of a staff member but certainly not Ms S. At that time, the husband knew it was a condition of his attendance that he had to give 24 hours notice of his intention to come into the centre. He did not do so. That was bound to cause a problem and it did. The mother ignored the requirement. When it went wrong, she stepped in to control the situation. The mother denied there was a problem with what the husband did.
Ms S
Ms S is the director of the childcare centre. The centre had agreed to supervise the husband’s time with the mother. No formal undertaking was required of the centre but they were mentioned in the orders of the Federal Magistrate. When asked why the centre would undertake that task, Ms S said that the centre wanted to help and in any event, they saw their charter as always supervising children anyway.
Before dealing with the incident just mentioned above, there were other problems worth recording. On 2 June 2011 and 16 June 2011, the husband attended at the centre and refused the wife permission to take the child home. He maintained not only in his response to the centre but also in evidence that he had a right to “access” to the child pursuant to the court orders until 6.00pm because the centre was still open. When asked to, he examined the order in the witness box but was unable to point to what he saw as his rights in the orders.
All of this led to the centre imposing conditions for his continued attendance.
On the day he went to collect the family dog, the husband acknowledged that he was annoyed about the centre’s restrictions but he was also affected by the failure of the Court’s conciliation conference to resolve financial matters. That conference had apparently just taken place. This gives insight into the anger of the husband.
Upon Ms S realising that the husband was in the centre, she asked him to leave and he began questioning her about who the workmen were on site and he wanted to see the rules of the centre. Graphically, Ms S described the husband’s “growling” in her face with teeth bared as he kept his foot in the door to prevent being locked out. He demanded of staff that they provide him with the code to get into the property. The police were called and when the husband’s mother intervened, the situation calmed.
The husband cross-examined Ms S about the geography of the building, the experience of her staff and the later reactions of the management. To the extent that his questions were designed to show some inaccuracy in her evidence, they failed to do so. He failed to address the significant issue of his own conduct. He asked how he was said to have abused Ms S and she described it.
The view of Ms S which I accept was that he was threatening. Whilst he did not call Ms S names, this episode was a poor reflection on his own behaviour and his understanding that other people have a right not to be intimidated by him.
Ultimately, that led to his entitlement to attend the centre being terminated in December 2011. The husband did not challenge the reasons behind the management committee’s decision.
Ms S was also criticised by the husband for not being objective in copying all of the correspondence that she sent to the wife’s lawyers to his lawyers. That did not show a lack of objectivity on the part of Ms S but rather that her focus was on protecting other parents and their children from witnessing the husband’s rude and aggressive behaviour.
On 22 July 2011, the affidavit of the mother made no reference to having been paid at all. Quite the contrary, the statement was that she wanted her money. She must have known then that she or her solicitor had at least $280,000. No mention was made of that. The same lawyer who lodged the caveat prepared the affidavit. I found that evidence very troubling.
On 1 August 2011, the husband and the wife were before Connolly FM in the Federal Magistrates Court in respect of these proceedings. There, an injunction was granted against the husband selling Suburb L without the wife’s consent which was not to be unreasonably withheld. However, despite the husband maintaining everyone knew he was selling Suburb L, it was clear that he had to first consult with the wife and he failed to do so when he executed a contract of sale on 28 August 2011.
Late on 31 August 2011, the husband’s solicitor wrote to the wife’s solicitor enclosing a copy of the contract of sale which had been executed by the purchaser unconditionally. Presumably because the husband had not consulted the wife, the husband’s solicitor explained that the husband had instructed them that the transaction was “bona fide and arms length”. There is no logical reason for that statement to have been made unless the solicitor was conscious of the husband’s obligations under the order to consult with the wife.
The husband’s solicitor also stated in writing that the proceeds of sale would be held by him on trust for the husband and the wife. Having regard to the mortgage then outstanding, the sale proceeds were very modest but the wife knew that because the husband had earlier made clear that he had already paid back his mother.
I find the husband’s dispositions of the drawn down funds were indeed an attempt to put the money beyond the reach of his creditors as well as the wife.
Position of the Trustee in Bankruptcy
Counsel for the trustee provided a set of minutes and he confirmed reliance upon the affidavit of the trustee save for paragraph 21 which was an observation rather than evidence of fact.
He submitted that the vested bankruptcy property should be paid to the trustee in accordance with the Bankruptcy Act and as such, anything that the husband had a legal interest in, formed that property. The exception to that was under s 116(2A) of the Bankruptcy Act relating to property that the Court found belonged to a trust. That property was obviously excluded from the bankruptcy. He submitted that none of the evidence supported the existence of a trust and on the evidence, I should find that the order should be made under s 106B of the Family Law Act because the disposition by the husband in drawing down the mortgage monies and paying them to his parents defeated the claim of the trustee in bankruptcy. He described those payments to the parents as impugned payments.
If the order under s 106B(1A) was made, the Court was obliged to determine whether what the wife had in her asset pool was a just and equitable outcome. The trustee submitted that Suburb K was a property in which the husband had an equitable interest, the legal title being in the hands of the wife. He acknowledged that there was little equity and as such, the bankruptcy trustee would not be pursuing orders in relation to that particular property.
Thus, it was submitted that when the question of s 79(2) of the Family Law Act was considered, the Court had to take into account that the bankruptcy estate had to deal with a number of creditors who would clearly miss out on payment in full. That also depended upon how much the wife received and what was left over.
In the affidavit of the trustee, a comprehensive list of liabilities was set out. Counsel for the trustee acknowledged the vagueness of those liabilities but indicated that it was the best that the trustee could do with the information available. That evidence pointed to questions about whether liabilities were personal to the husband or indeed corporate entity liabilities. Such things as liabilities of the husband as an individual for his legal fees could hardly be debts for which the wife should have any responsibility.
When one looks at the liabilities listed by the trustee, only a modest portion of them appear to relate to creditors of the husband. Even the smaller trade creditors may very well be creditors of the husband’s companies. In any event, it was submitted that I should take those matters into account when making any adjustment.
Section 106B of the Act
Section 106B empowers the Court to set aside a disposition made to defeat an anticipated order or which, irrespective of intention, is likely to defeat any such order. It is this provision that the wife relies upon to set aside the transaction between the husband and his parents under which he paid to them the $280,000.
Section 106B(1A) provides that if a party is a bankrupt and the trustee is also a party, the Court may set aside a disposition made by the bankrupt which is made to defeat an anticipated order or, similar to s 106B(1), irrespective of intention, is likely to defeat any such order. That obviously focuses on the claim of the trustee of the husband’s bankrupt estate.
The transaction under which the husband disposed of the $280,000 out of the $300,000 is the focus. As counsel for the trustee submitted, he had no interest in that money or portions of it if it belonged to the husband’s mother in the first place. A similar principle applies to the wife.
Section 116 of the Bankruptcy Act 1966 (Cth) provides that property belonging to or vested in a bankrupt at the commencement of the bankruptcy is property divisible amongst creditors. As earlier mentioned, there is a specific exclusion to property held by the bankrupt in trust for another person. The question is whether or not the husband had property at the commencement of the bankruptcy. That commencement is defined as occurring upon the husband becoming bankrupt as a result of the acceptance of the debtor’s petition. In this case, having found that the trust did not exist, the husband was not holding property upon trust when his debtor’s petition was lodged.
It will be seen from the bankruptcy perspective that the evidence needs to be examined to see whether the husband’s intent was to avoid the money being caught by a claim by a future bankruptcy trustee. It will be noted however that intention of the future bankrupt is not essential for the application to succeed. Dispositions can be caught irrespective of intention simply because of the likelihood that a claim might be defeated. The same logic applies in respect of the provision concerning the application by the wife.
It is necessary to consider whether a reasonable disponor, at the time of the disposition, taking into account all of the circumstances, would have reasonably anticipated that an order would be made under s 79 of the Family Law Act. That examination requires consideration of whether or not there was a real chance as distinct from some remote possibility (see In the Marriage of D and D (1984) 10 Fam LR 73 at 83; (1984) FLC 91-593.)
Two important considerations apply here. In respect of the bankruptcy question, the evidence supports the conclusion that the parents were aware of the husband’s business having financial troubles and anticipated a dispute with the husband’s partner. It is not quite so simple in respect of the claim by the wife but on any view, the husband’s mother acknowledged that the wife had an interest in Suburb L. Bearing in mind what the reasonable disponor might have thought, I find it ultimately had the effect of defeating the wife’s claim even though the husband endeavoured to argue that he thought there was ample equity in the property.
Section 106B(3) provides that the Court must have regard to the interests of and make any order proper for the protection of a bona fide purchaser or other person interested. The test of bona fides is whether the purchaser at the time of the disposition should have been aware by making an inquiry that that disposition would defeat the claim (see In the Marriage of Heath(No 2) (1984) 9 Fam LR 642). The purchaser in that sense in this case was the husband’s parents.
As I have earlier found, there was no trust of any nature that would have enabled the mother to claim the payment of the money. It was never suggested by the mother that she was owed money by virtue of a loan.
Having found that the interest in Suburb L and its equity belonged to the husband and indirectly the wife, what the husband did was wrong and the remedial power in s 106B must be exercised.
There is the curious problem of the mother’s husband but as he was a party to the proceedings when the injunction was made and it would appear on the evidence he had taken the money for share trading purposes, he has had sufficient warning and notice of the potential claim by both the trustee in bankruptcy and the wife that he might have to disgorge funds. In her evidence, the mother indicated that if there were not sufficient funds in the share portfolio, she would have to sell her unit. That property too would appear to be jointly owned with her husband and again, he has had sufficient notice of the potential for these orders to be made for the Court to be satisfied that natural justice has been done to him. I propose therefore to exercise my discretion in order that the sum of $280,000 be paid and that it initially be paid from the shares and failing satisfaction of the sum, the mother’s interest in the unit will be appropriately charged.
The law to be applied
Section 79(2) provides that
[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) prescribes matters to be taken into account in considering what order (if any) should be made under the section. The question presented by s 79 is whether the parties’ rights and interests and in this case, that includes the husband’s trustee in bankruptcy, should be altered.
Property of the parties
As a result of the matters above, I find that the property of the parties is the legal interest of the wife in Suburb K and the equitable interest of the husband in that property. Those combined have an modest value of $7,500.00. There is the money now due by the husband’s parents of $280,000. That money belonged to the husband by virtue of his legal interest in Suburb L. It is unnecessary for me to find whether or not the wife had an equitable interest in that property because it is common ground between the wife and the trustee that it is just and equitable to make an order under s 79. There is a modest sum of just over $94,000 in trust from the sale of Suburb L and that must fall into the category just mentioned. There are chattels which appear to be jointly owned including a disputed painting but no expert or otherwise relevant evidence was led about their value nor was any specific order sought to alter the interests in them.
It was common ground that I was not to concern myself with the splitting of superannuation interests. It was asserted by the wife to be $39,000 for her and $31,000 for the husband. The husband neither admitted nor denied it and the evidence about its acquisition, conservation and improvement remained largely silent.
It was not suggested by either the wife or the trustee that I should take into account any asset or liability (and hence any interest or debt) of either of the husband or wife in the husband’s former company FF Pty Ltd. In his affidavit, the husband said the sale of the company was due to take place in August 2010 and when he swore his affidavit on 1 July 2012, the “process” was still “in dispute and undergoing litigation” at his “insistence” and he had not relinquished his “ownership”. The trustee showed no interest in and the wife disavowed any interest as well. Having regard to the husband’s bankruptcy, I propose to ignore it.
Findings
When the relationship began in 2004, it would seem on what I have said above that the husband did have property even though the case was conducted before me by all parties, on the basis that he did not.
Even without an agreement that it was just and equitable to make an order, I would find that to leave the wife with the Suburb K property was not a just and equitable outcome. That is because she had an entitlement at least to the use of the Suburb L property before its sale based upon the equitable argument that she and her family contributed to the various renovations. In my view it would not be just and equitable to leave the trustee with all of the remaining money. As indicated earlier, the judicial discretion must be exercised according to legal principles. Section 79(4) sets out those principles.
I find that the parties both worked at various times through their relationship and contributed their incomes to their ventures which included the alterations at Suburb L and the purchase of the land and the building of the house at Suburb K.
The non-financial contributions of the parties were assisted by extended family on both sides. The wife’s family laboured and provided resources for the real property. The husband’s family did likewise but importantly also advanced significant funds as I have outlined above. Those sums have consistently been denied as loans and I see no reason (despite my findings about the lack of the mother’s ownership) not to take into account that some of those monies were contributions by or on behalf of the husband because of the assistance he received from the family.
In his affidavit, the husband said he contributed “in the vicinity” of $70,000 to Suburb K whereas the wife contributed, in his view, “nil”. Contributions come in many forms and not just in money terms. Section 79 requires me to take into account the contribution to the welfare of the family including any contributions as homemaker and parent. That contribution does not stop when the relationship ends. Despite the husband being restricted in his role in the life of the child by court order, the reality is that the wife has had to physically and financially support the child without assistance from the husband. Section 79(4)(g) requires the Court to take into account any child support under the child support legislation. The husband correctly pointed to having fulfilled his obligations under the assessments that he had received. However, the provision also refers to liabilities under that legislation that he might be liable to provide in the future. In evidence, the husband acknowledged not having worked much but when he did, it was only for four days since July 2012. He said he could not work because of medical issues but then acknowledged that he had not been seeing his counsellor. In his evidence, the husband also referred to an email in October 2012 in which he pointed out that there was some difficulty in contacting him because of “work assignments” which might occasionally call him away from home. I do not have confidence that if he had the opportunity to contribute more child support in the future, he would do so voluntarily. He made his attitude clear that the wife was well looked after and had a good earning capacity. I find therefore that it is more probable than not that the wife will carry the greater responsibility in future for the financial support of the child. I find that because of the parenting orders I am obliged to make now as a result of which, the wife will have the greater physical care of the child. That in turn means that she will be restricted in what she can do and earn for herself. Even if she can work full-time, there is the obvious cost of childcare. In addition, unless the husband’s view alters, the wife will be responsible for all of the education costs of the child.
Section 79(4)(e) is another mandatory consideration. It requires the Court to look at those factors which are relevant in so far as they affect either party. That provision takes the Court to s 75(2) of the Act. In respect of those matters, I find the following:
· The parties are both relatively young enough to have a long working future ahead of them;
· The husband maintains his mental health affects his working capacity and I have found it also most likely affects his ability as a parent. Sadly, he produced no evidence that would assist me on that issue. For her part, the wife has not shown any indication of a health problem;
· Each party has the capacity for employment even taking into account what I have said about the unclear evidence of the husband. The husband has qualifications as a tradesman as the wife has qualifications as a health worker;
· The role of a parent to the child has already been mentioned above but in economic terms, the physical time and the cost of caring for the child will fall to the wife for the foreseeable future;
· Whilst the husband has commitments to support himself, I accept that living on Centrelink payments is below the poverty line. Having said that, as indicated above, the husband has shown some capacity to work and does not seem to have the will to do so at the moment;
· Both parties only have commitments to support themselves except that the wife now has another child to her new partner. She is living in a relationship so the burden of that child will be shared with the child’s father;
· The standard of living of the wife has not significantly altered yet the husband and his mother said that the husband was sleeping on people’s couches. Because of his bankruptcy, I cannot make any adjustment that would ameliorate that position. No creditor other than the trustee in bankruptcy has come forward to claim an interest in any of the property of the parties. No adjustment I can make will apparently ensure all creditors’ debts are met;
· The duration of this marriage has not affected the parties’ earning capacities;
· The financial circumstances of the wife’s new relationship make her position financially stable. She now has a house albeit with significant mortgage commitments but two incomes in the family. The husband’s personal circumstances were barely mentioned in the evidence other than as I have indicted above. I do not know what he will do in the future;
· The making of an order altering the interests in the assets of the parties will have an effect on the vested bankruptcy property such that whilst the creditors will not apparently be paid in full, the husband would not be released from his bankruptcy in the event;
· The child support liability is minimal and I do not know what might happen in the future other than as I have indicated that I doubt that the husband will pay happily.
Superannuation
I have mentioned the respective interests of the parties in superannuation. The Trustees indicated no interest in the husband’s superannuation because it did not fall into his estate. Neither the husband nor the wife adopted any position in relation to the superannuation interests other than that they should remain where they currently lie.
The husband’s interest was said to be about $31,000 and the wife’s $39,000. Neither the husband nor counsel for the wife disputed those amounts and I have accepted them accordingly.
The Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 held that the inclusion of s 90MC was that a superannuation interest was to be treated as property for the purposes of s. 79. The Full Court in Coghlan and Coghlan (2005) FLC 93-220 described superannuation interests as another species of asset different from property as defined in s 4(1) but acknowledged that the effect of the provisions was that orders could be made in proceedings under s 79.
The fact that it is a different species can be recognised by its very nature. It is not an entitlement in the sense of cash and in many cases, such as the one here, it has little apparent value to the parties for many years to come. Further, the unusual feature of this case is that the bankruptcy legislation treats it as a different species of property by excluding it from the bankrupt’s estate. In my view, the respective superannuation interests should be treated differently and should not be added to the other assets.
Having said that, the same assessment process is required because of the provisions of s 79. The evidence is scant as to how the superannuation interests arose and that was the choice of the parties. I have inferred that the wife obtained her benefits from her employment and the husband from either employment or his control of the corporate entity mentioned in the proceedings.
The same direct and indirect contributions would therefore be applicable and I propose to make the same assessment in respect of both lots of property. In saying that, I have consciously avoided taking it into account when considering s 75(2) of the Act.
The approach to the assessment
The approach to this assessment can be either on a global basis, that is, taking all of the property as it is grouped or on an asset-by-asset basis which looks at property in an individual sense.
Even taking the two pools approach in relation to the cash, chattels and real property as against the superannuation, a global approach is fair because all of the assets in both forms have come from the parties efforts. Each parent contributed differently but to assess individual assets runs the risk of not giving proper weight to the different things the husband and wife did. It is clear that the role of a parent and homemaker is as important as that of the breadwinner. The parents’ involvement is recognised in the contribution assessment as having been made by or on behalf of the husband and having rejected their claim for an interest, the property is relatively clear and straight forward to assess. Thus, the global approach is the best way to assess things.
Conclusion
I find the husband has contributed up until the date of the separation much more than has the wife. Since separation, the reverse is true. I would assess their contributions absent s 79(4)(e) of the Act, as 65 per cent to the husband and 35 per cent to the wife. Having regard to my findings concerning s 79(4)(e), I would make a further modest adjustment to that assessment and I find that the overall percentage adjustment of the assets to achieve a just and equitable outcome should be 60 per cent to the husband and 40 per cent to the wife.
Taking into account that assessment, it is clear that retaining the current legal positions of the title holders to the property as I have described them, is not a fair outcome for them and an adjustment of their interest is necessary. A just and equitable outcome would be consistent with the assessment I have just undertaken.
A just and equitable outcome would be for the wife to retain the Suburb K property subject to the mortgage encumbrance thereon together with the funds in trust from the sale of Suburb L and from the money due to the husband’s bankrupt estate by his parents, a further sum of $50,000. The retention by the trustee of the balance to distribute towards bankruptcy costs and creditors is a just and equitable outcome for the trustee.
The wife sought orders that if the parents did not pay the impugned payments within 14 days, default orders should apply concerning the sale of their property at DD Town. There is insufficient evidence about ownership, encumbrances and the like to enable me to confidently make that order. Because the mother said that her husband had invested the money in the sharemarket, there will no doubt be some time required to either liquidate the shareholdings or to arrange borrowings. There can be no doubt that this has been an issue for many months so there should not be any surprise to the parents of the possibility of having the find the money. I will allow them one month but I see no reason why any interest should not run from the date of the orders.
The issue of the increased mortgage interest on Suburb L which consequently reduced the available cash after the sale along with the loss of the use of the money because it was given to the parents was not strongly argued nor was there any reliable evidence that would enable me to make any specific findings. It may be that the mother and her husband have also lost on the sharemarket for as she suggested, they may have to sell their home. All of those things are too vague to enable me to make any specific finding so I propose only to deal with what I do know. Thus, interest can run from the date of these orders.
In my view, it is just and equitable to make the orders set out at the start of these reasons.
I certify that the preceding Four Hundred and Seventeen (417) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 April 2013.
Associate:
Date: 9 April 2013
Key Legal Topics
Areas of Law
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Family Law
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Insolvency
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Equity & Trusts
Legal Concepts
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Remedies
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Injunction
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Res Judicata
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Costs
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Constructive Trust
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Fiduciary Duty
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