ROWSE & GOUKER
[2020] FCCA 3163
•24 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROWSE & GOUKER | [2020] FCCA 3163 |
| Catchwords: PROPERTY – wife seeking 74/26 split of non-superannuation pool – husband seeking 60/40 in favour of the wife – contributions found by court to be 53/47 in light of Kennon factors – wife to have predominant care of children and having lower earning capacity than the husband – 70/30 division clearly just and equitable. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 75(2).106A, 102NA, 190 |
| Cases cited: Goode v Goode [2006] FamCA 1346 Mallet v Mallet (1984) 156 CLR 605 Kennon & Kennon [1997] FamCA 27 Stanford & Stanford (2012) 247 CLR 108 |
| Applicant: | MR ROWSE |
| Respondent: | MS GOUKER |
| File Number: | DGC 2608 of 2019 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 23 September 2020 |
| Date of Last Submission: | 23 September 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 24 November 2020 |
REPRESENTATION
| Counsel for the Applicant: | Self-Represented |
| Solicitors for the Applicant: | Not applicable |
| Advocate for the Respondent: | Mr Ng |
| Solicitors for the Respondent: | Pentana Stanton Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr McLeod |
| Solicitors for the Independent Children's Lawyer: | Ebejer and Associates |
ORDERS
PARENTING ORDERS
The mother have sole parental responsibility for the children X born 2016 and Y born 2013 (“the children”).
The children live with the mother.
The children spend time with the father professionally supervised by the Family Contact Service, or other agreed service, once per month for a minimum of two hours at times and dates as can be accommodated by that service, with all costs associated with same to be borne by the father.
Both parents undertake a parenting program and a parenting after separation program as provided for in the Orders made 8 April 2020, with each parent to do all acts and things to enrol in such program within 14 days of the program/s recommencing after the Covid restrictions permit them to do so.
The father undertake Men’s Behavioural Change program, with the father to do all acts and things to enrol in such program within 14 days of the program recommencing after the Covid restrictions permit them to do so.
AND THE COURT NOTES:
A.In the event the father seeks to bring a further application to reagitate these proceedings, he should not do so for at least 12 months and any such application should include an affidavit which addresses the following:
(a)His drug use, and any engagement with drug and alcohol counselling, and any screens that he has undertaken;
(b)His engagement and completion of a men’s behavioural change program and/or individual counselling which addresses strategies relating to anger management and family violence;
(c)His insight into the effect of family violence on the children;
(d)Evidence of completion of parenting programs; and
(e)What time, if any, he has been spending with the children, and the consistency of that time.
PROPERTY ORDERS
THE COURT NOTES:
A.That for the purposes of these orders, the notional non-super pool comprises:
| NO. | ITEM | AMOUNT |
| 1 | Net proceeds of sale of former matrimonial home at A Drive, Suburb B (‘the Suburb B property’) held on trust by for both parties by wife's solicitors | $303,319.77 |
| 2 | Interim distributions paid to the husband on 12 August 2020 and 26 August 2020 | $27,360.00 |
| 3 | Interim distribution paid to wife on 26 August 2020 | $42,640.00 |
| 4 | Husband's C motor vehicle | $7,500.00 |
| 5 | Wife's household contents | $5,000.00 |
| 6 | Husband's Westpac personal loan liability | $31,615.55 |
| 7 | Husband's Westpac Visa credit card | $3,601.06 |
THE COURT ORDERS:
That the net proceeds of sale of the Suburb B property be divided in such proportions as would lead to a 70% to 30% division of the notional non-super pool in value terms in favour of the wife, on the basis that the wife will retain sole ownership of or responsibility for items 3 and 5 while the husband retains sole ownership of or responsibility for items 2, 4, 6 and 7.
That Pursuant to Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of Mr Rowse’s interest in Superannuation D, the trustee shall pay to Ms Gouker the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $31,868 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders;
The operative time for the purposes of this order is four (4) business days from the date of these orders.
Upon having been accorded procedural fairness, this order is binding upon the trustee.
There be liberty to apply reserved to each party and the trustee in relation to the implementation of the order(s) affecting the superannuation interest of Mr Rowse in Superannuation D.
That unless otherwise specified in these orders and save for the purpose of enforcing such orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;
(b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other but for these orders;
(c)bank accounts be retained by the account holder;
(d)insurance policies remain the sole property of the beneficiary named therein;
(e)each party be solely liable for and indemnify the other against any liability in their sole name or liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Rowse & Gouker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 2608 of 2019
| MR ROWSE |
Applicant
And
| MS GOUKER |
Respondent
REASONS FOR JUDGMENT
This is a parenting and property dispute. The parenting dispute is about the best interests of two children, X, born 2013, and Y, born 2016.
Putting the matter broadly, the father seeks that the children live with the mother, that there be an order for equal shared parental responsibility and the children spend relatively extensive time, including unsupervised overnight time, with him. The mother opposes this and seeks that the father spend supervised time and her to have sole parental responsibility. Subject to certain nuances, the Independent Children’s Lawyer supports the mother’s position.
In respect of property, both parties appear to seek an equalisation of superannuation. The wife seeks a 74/26 split of the parties’ remaining assets and the husband seeks a 60/40 division in favour of the wife.
It should be noted that the parties are not yet divorced and I will refer to them as “mother” and “father” or “husband” and “wife” as the situation makes appropriate.
For the reasons that follow, I propose to make the parenting orders sought by the Independent Children’s Lawyer. I will additionally order an equalisation of the parties’ superannuation, with a division of the property pool 70 per cent in favour of the wife and 30 per cent to the husband.
Agreed or Uncontroversial Matters
The father was born 1985 and the mother was born 1986 in Country E. She migrated to Australia in January 1990, together, it would appear, with her parents, with whom she presently lives. The parties commenced cohabitation in either 2010 (father’s version) or June 2011 (mother’s version) and married 2012. As earlier indicated, X and Y followed in 2013 and 2016 respectively.
There is a dispute between the parties as to whether they separated on occasions during the relationship, but, on any view of the matter, the relationship came to a final end in May 2019 following a period, it would appear, of separation under one roof. A final intervention order was made on the application to the police, in favour of the mother, on 26 June 2019.
In 2018, the Department of Health and Human Services provided a parenting plan pursuant to which the children were to live with the mother and in the course of which a positive finding was made that the father was responsible for family violence.
Following the father’s initiating application in August 2019, in the fullness of time an Independent Children’s Lawyer was appointed and a series of supervised visits have taken place thereafter. I will expand in slightly greater detail when I deal with the parties’ affidavits.
The former matrimonial home has been sold, following some non‑cooperation by the husband and the making of a section 106A order, and the net proceeds of sale are slightly over $300,000. Interim distributions have been made to both of the parties. In truth, this sum, leaving aside the question of superannuation, constitutes the pool.
The Parties’ Affidavits
The parties have filed a number of affidavits. Those of the father are, to an extent, rendered slightly problematic because he has been, in the more recent period of time, unrepresented.
It is not unfair to assert that the father has sought to portray the relationship as one marked by mutual verbal recriminations between the parents, but one in which he steadfastly desires any actual physical violence perpetrated by him against the mother. He accuses the wife of having had a long running affair which came to his attention in 2015.
The mother, by way of contrast, denotes a lengthy history of significant controlling and abusive behaviour including actual assaults. She refers to serious paranoia on the father’s behalf, causing him, for example, to assault an 84 year old acquaintance of hers, whom he thought was in an intimate relationship with her, contrary to the facts. The mother deposes to ongoing psychological difficulty as a result of her treatment by the father and she has been under treatment obtained through Support Service F since May 2019.
This broad brush paraphrasing of the parties’ affidavits, which include, obviously, the matters set out under the agreed section above, is, in my view, sufficient. It should be noted that in his trial affidavit, the father has appended a medical report from his GP asserting that he has no mental health problems, but this clearly hearsay document has not been the subject of any testing.
The Report of Ms G - Contact Service Supervisor
Ms G’s report appends detailed observational reports of the various periods of supervised time the children have had with the father, commencing in December 2019.
It is clear that the elder child, X, was, at all times, enthusiastically interacting with the father, but Y, who is substantially younger, was far more reserved.
The father cancelled a number of visits on the basis that he could not afford them. I note that the mother was complaining to the support worker that the father was breaching the intervention order by sending her texts about the meetings. The mother forwarded copies of these to the worker. The final summary relevantly asserts:
The writer has attended six visits with Mr Rowse and his daughters, X and Y, from December of last year to present
Although the visits were stipulated fortnightly, the visits have been inconsistent due to Mr Rowse being unable to afford service. Only the first initial visits were fortnightly.
During the visits, the girls seemed to enjoy themselves especially X (the oldest), who was open and happy with the interaction with her father. However, Y was closed, serious and not interested in talking with Mr Rowse. As each visit progressed, she seemed more relaxed and comfortable in her father’s presence.
There have not been any concerns regarding Mr Rowse’s presentation and he has not been observed as being drug affected.
Mr Rowse has tried interacting with the girls and has exhibited interest in them and the girls enjoy the visits. However, it was observed that the visits lacked planned activities or games to keep the girls entertained during the spent time, which highlights Mr Rowse’s inadequacy to address their needs at times due to his being distracted and absent.
Mr Rowse has shown affection to his daughters. X seems to have an established relationship with her father. In contrast Y was reticent to interact with Mr Rowse. Not always, but on most occasions.
Ms Gouker has maintained that Mr Rowse has breached the intervention order by going to her home and sending her text messages.
I note that the last visit was at the home of the paternal grandparents where the father lives and the grandparents saw the girls for the first time in a while and were loving and attentive with them.
The Section 11F Report
Family consultant H saw the parties on 31 March 2020 and produced a written report. It should be noted that the matters alleged between the parents (including what appear to be conceded occasional cannabis use on the part of the father, together with not insignificant amounts of alcohol) are essentially those in the parties’ affidavits. It noted the allegations of mental ill health made by the mother against the father and his denials. It noted the mother’s allegations of significant family violence. I note that the mother’s narrative appeared to minimise the level of family violence perpetrated against her (paragraph 17) and the father’s likewise minimising of his behaviour.
At paragraph 19, the report noted:
Mr Rowse’s narrative presented as minimising of his behaviour, as attributing full responsibility to Ms Gouker for his behaviour, his mental health and the current circumstances. His narrative was at times contradictory and evasive and he appeared as either unable or unwilling to accept responsibility for his behaviour.
At paragraph 20 the report went on:
His narrative in relation to the breaches, the criminal proceedings and his brief incarceration was evasive and unclear and he tended to digress to a tangential topic.
At paragraph 23, the report noted:
Mr Rowse’s narrative raises concerns for the level of risk posed by him towards Ms Gouker and the children. He appeared to place blame on Ms Gouker (and at times the maternal family) for all the current circumstances and lacking insight into the effect of his behaviour on them. It has been assessed that the level of risk posed by Mr Rowse to Ms Gouker and the children is high and any spend time between him and the children should be supervised.
The report went on to note the father’s time with the children had been inconsistent and it was recommended there be no increase in time (paragraph 24).
The Report of Dr I
Dr I provided a report in relation to the father dated 10 March 2020. It was formally received as exhibit “D1” when Dr I was called. It is sufficient to note that Dr I was concerned that he had not met with the mother, it being his preference to interview both parents in these sorts of circumstances.
Under the heading “Opinion and recommendations” on page 6 of the report at paragraph 3, the report asserted:
Mr Rowse’s presentation was generally relatively unremarkable. However, he was specifically guarded and mildly evasive when issues pertaining to his mental health, as raised in Ms Gouker’s affidavit, were examined. It was unclear, but possible, that Mr Rowse’s apparent unwillingness to be open and transparent in regards to some specific elements of Ms Gouker’s concerns reflected hidden beliefs he realised could be adversely interpreted. The relevance of this aspect to the assessment is unclear.
At paragraph 12 on page 8, the report noted:
Mr Rowse’s mental state throughout the assessment was not consistent with a person suffering from a major mental illness. He did not present with signs suggestive of a psychotic disorder. Ms Gouker’s concerns raised in point 16 suggest he may have underlying idiosyncratic beliefs that could feasibly be consistent with a paranoid state/illness. Mr Rowse did not present with such features in this assessment, but his guardedness in the context of responding to questions pertaining to some elements of point 16 leaves this component to his presentation unclear. Patients with odd and/or delusional beliefs often have sufficient insight and self‑awareness to not openly disclose. It is unclear if Mr Rowse’s guardedness reflects this type of process.
The report noted at paragraph 16 on page 9 that the father had not attended a Men’s Behaviour Change program. The report went on to say, at paragraph 17:
Mr Rowse had supervised contact with his daughters up until two months ago. I have not received a progress report pertaining to these episodes of contact. I assume, based on his presentation in this assessment, that contact progressed satisfactorily. Unless there is information to the contrary, I assume supervised contact is appropriate. Less vigilant supervised contact is also likely to be safe and appropriate. I am loath to offer a firm opinion regarding progressing contact to be completely unsupervised until there is greater clarity regarding some of the uncertain elements raised in this report.
The Evidence Given and Submissions Made at Court
What follows is taken from my notes.
The Evidence of Dr I
By consent of all parties, Dr I was called first and adopted his report as exhibit “D1”.
I should indicate that I was alerted to the existence of an extant final intervention order. This being so, I alerted the father to the prohibition on cross-examination. The father, who initially indicated he did wish to cross-examine the mother decided he wished to proceed on the day, notwithstanding that I alerted him to the possible prejudice that this might entail.
Under cross-examination by counsel for the Independent Children’s Lawyer, Dr I confirmed that he saw the father on 6 March 2020. He had not seen the mother. He has been undertaking assessments for over a decade and it is preferable to meet both parties. It is unusual not to be asked to meet both parties.
The father’s assertions were untested and he made various allegations about the history of the relationship. Dr I confirmed that it was not necessary to the case that his report would have been more adverse to the father if he had seen the mother.
The father had explained the business about extra‑terrestrials. They were watching a Netflix program together.
Dr I was not able to be completely confident that the father was being truthful. He was not aware that he had been in jailed for 60 days in April 2020. This raised concerns for him. The father had said that his cannabis use was historical and limited. He said he had not used for two years. There was no reason why he had not taken screens.
He was surprised that the father had not undertaken the Men’s Behaviour Change program. The father said he was not required to. If it had not been complied with, it was concerning. He was not aware of the Department of Health and Human Services recommendation in 2018. The father was very closed about his religion.
Dr I was reserved about the recommendation for supervision, but, based on the new information available to him, he would want the father’s time to be supervised.
Under questions by the father, it was put to him that there were no problems disclosed by the family contact centre report. Dr I said he had not seen it.
Counsel for the mother elected not to put any questions to Dr I.
The Opening and Evidence of the Father
The father said he was seeking a fair and equitable property split, 60/40 in favour of the wife. With the children, he wants to see them once per fortnight for a weekend and also Skype and FaceTime. He wanted 6.00 pm Friday until 7.00 pm Sunday in the first week, and in the second week, Friday 10.00 am till Saturday 10.00 am. He then said he was not so sure. He could not have both weeks. He wanted FaceTime if he was not spending face to face time with the children. He wanted time on holidays, birthdays and particularly his own birthday. He sought an equalisation of superannuation.
The husband was affirmed and adopted his affidavits and financial statement as true and correct.
Under cross‑examination by counsel for the mother, the father accused her of assaulting him. He affirmed his assertions as to the alleged assaults denoted in his affidavit material by the wife on him. She had threatened to kill him twice. She threw hot soup on him. He denied drinking wine every day.
He said that these were serious matters, but none of them were in his first affidavit because he did not elaborate. He wanted to avoid a trial. He was not sure if he had disclosed these matters to Dr I. He told Dr I some of the things. It was put to him that he did not disclose these matters to the section 11F reporter and he was not sure.
The interview with Family consultant H was on 31 March, but he could not remember what was disclosed. He has always had a weak spot for the mother so he has tried to shield her. He told Family consultant H that the mother abused him by not getting a job. He told Family consultant H that the mother was nasty and that he shielded her.
I interpolate and say that in light of the 11F report, these assertions are plainly untrue.
He was happy for the children to live with their mother. She was better than he would be. She is the best person in the world to look after them. He cannot look after them full time. The children are safe in her care.
He then said that the mother’s conduct of which he complained was not necessarily done in front of the children. He told Family consultant H the mother was addicted to Dimetapp and other drugs, but then withdrew the allegation. Her use was excessive. He is just not a very vindictive person.
The children are brainwashed by the mother and her family. This was instanced by the three year old saying, “Daddy, you’re not our family.” She saw the mother whispering negative comments about her to his eldest daughter and that makes him angry. The children enjoy their time with him and they are happy to see him.
When it was put to him that he was alleging constant brainwashing, the father gave extremely circumlocutory answers that appeared to me to somewhat withdraw from the allegation he had made.
It was put to the father that he had told Dr I that he had irregular use of cannabis until a couple of months ago. The father said he smoked occasionally. He has not smoked every day for 15 years. He has smoked here and there for 15 years. Once again, I interpolate to say that the father’s answer was circular and evasive.
It was put to the father that his drinking had increased from May 2019. He said he did start to drink more. He had to cope with stress and loss. On a couple of times per week he would drink sometimes as much as 10 drinks all up. This led to a breach of the intervention order. He would normally drink three to four bottles of beer, but sometimes as many as 10 bottles (I took these to be 375 millilitre bottles). He has a good relationship with his parents who have stuck by him.
The father was cross‑examined about a text message at page 64 of the wife’s trial affidavit, being a message from the husband’s family to the wife. This said, inter alia, “I would like to speak to Mr Rowse. It’s shameful that you’re on crutches as a result of his actions.” The father was not sure. He said she kicked him and fractured her ankle.
The father was cross‑examined about his finding out that the wife had cheated on him during the relationship. He said that he knew she was hiding things during the relationship. This gave rise to what can only be described as an extensive vent. He said he found out when he looked through her telephone and on the computer. The father was cross‑examined about a Facebook extract at annexure 1 to his trial affidavit. She had left Facebook on the family laptop and he took a sticky-beak. He did not like what he saw and took a screenshot.
He was not excluded from the family home until the intervention order. A police officer came to the house. The mother had left with the children. He took the screenshot because it was not going to end well.
He conceded breaching the intervention order on 26 June 2019 and receiving a 12 months CCO. He conceded breaking into the house on 27 May. It was put to him that he had broken in together with another woman on 29 May 2020 and the husband, tellingly me in my view, responded, “You can’t break into your own house.” He took photos of X and took very little at all. He conceded, however, that he had sent the mother 80 text messages over two days. He was trying to sort it out with her, but was too excessive.
He conceded that on 14 May 2020 he was sentenced to 90 days jail and a CCO for 18 months. This was for persistent breach of the intervention order. He conceded sending a number of insulting emails, messages such as, “Have you been sucking cock?” “Have you been giving J a hand job?” He would not do anything to hurt the girls, but he has been sentenced for his conduct. When it was put to him that his messages were threatening and abusive, the father responded, “I suppose so.”
Counsel put to the father that he had been physically abusive and assaulted the mother. He said he had never instigated physical abuse. Sometimes he might have defended himself or retaliated. She was slapping his face and he pushed her away. It was more of a defence. It was put to him that he was controlling after he discovered the wife cheating on him. He said that this was not all true. He was pretty flexible with her friends. He did not really control her. In terms of the cheating, he did not trust her. She was never trustworthy.
The father said he had missed some drug tests. He became unemployed and could not afford tests at $150 a pop. He got fed up with the drug tests. He asked, rhetorically, “who was she to ask me?”. He could not afford it.
He was cross‑examined about his visits with the children. On one occasion, he was in prison and the others he could not afford. He did not agree to pay to see his children. He could not accept paying to see his kids.
He was asked why he lost his job in February 2020. He said his contract ran out and was not renewed. He then went on to say non‑responsively that there was stress in his life. It was better not to work and concentrate on himself. The events had really squashed his passion for work and he was not looking for work. His mental health has never been more fantastic except that he does not have access to his children.
I interpolate yet again to say that the father’s responses during this passage of his cross‑examination were vague and unconvincing. There was a pronounced note of self‑pity in everything he said and much of it was said under observable pressure of speech.
Counsel moved to the question of property matters. The husband agreed there had been a separation in September 2017. He had asserted savings of his own of $80,000 and the wife $30,000 at commencement. They had a $110,000 deposit. His money went into her account. $50,000 did not come from her.
It was put that of the $110,000 part was first home owner’s grants for him and the wife. It was put that he had contributed $50,000 and she had contributed $40,000. The husband said the wife already had a bank account with Westpac. He was with the CBA. He did not agree she had $40,000 and he had $50,000. She works in a supermarket and could not have had as much as he did. He was the income earner and paid for everything. Even after separation, he still went to work. Nothing changed.
The husband was cross‑examined about annexure “G-007” to the wife’s trial affidavit, showing that he had paid her $3,000 from separation until March 2019. The husband said she asked for money. In 2018, he started to suddenly put descriptions on the amounts of money he was providing, but, in the years before that, he had not. There followed another lengthy complaint about finances.
He then went on to say that she was paying some things and he was paying some things. She was receiving Centrelink. $3,000 was not all the money he had paid.
It was put to him he had sold the family car during the proceedings. He said he had sold the family car. He said it was in his name. The banks were chasing him for money. She took over payments for the car. The car was sold and the payout figure was $38,000, although the amount received was $31,000. He was out of pocket $7,000. Mr A Rowse paid the shortfall. This is his father. This was because he was in jail.
The Father Under Cross‑Examination by Counsel for the Independent Children’s Lawyer
The father confirmed that he had not thoroughly read the Independent Children’s Lawyer’s case outline. He agreed that the children live with the mother and that they were better off with her. He had been in jail for two months for breach of an intervention order and family violence. He pleaded guilty. It was a breach of the intervention order and a breach of the CCO. He did not contest anything and he accepted the police summary and admitted that he had breached.
He was questioned about the recommendation of the Department of Health and Human Services in 2018 that he undertake a Men’s Behaviour Change course. The father said this was not the case. He did not understand the Department of Health and Human Services involvement. He did not recall. They were involved once and then once again after the IVO.
He was now in the process of doing a Men’s Behaviour Change course and had 25 weeks to go. When asked if he was happy to continue, he said he believed it was mandatory. He went on to say, tellingly in my view, that he did not believe he really needed it. He will not take much from it. He said, “My behaviour is not perfect, but when people push my buttons.” The course will not mould him into someone he is not. When asked if the mother pressed his buttons, the father said, “Every one.” He has met a lot of people in jail because of intervention orders. She knew how to do it. She pushed his buttons. She might have done this deliberately. She did do it deliberately.
When it was put to him that he held the mother responsible for him going to jail, he initially appeared to deny this, but his answer then became equivocal.
When it was put that there were poor communications with the mother, the father said she could not communicate with him. She would get angry. This was whether he talked to her in a distant fashion or whether he was super nice. It made no difference.
It was put that there was no prospect of joint decisions. The father said the mother can only make decisions with legal help or police help. All he wants to do is see his kids. She cannot make that happen. She put a 12 month intervention on him and he would have to go to court. I interpolate yet again to say that the father would not answer questions directly and the tenor of many of his answers was highly accusatory of the mother.
It was put that there were orders for him to spend time on 29 October 2019 on alternate weekends. He said he attempted to do that. When asked how many times he had seen the children, he said he did not count. It was five or six times. He was in jail for two months. There were 38 weeks of possible visits. Counsel put it that out of 19 or 20, he had only had six visits and the father agreed. It was put to him that this was not an impressive total, but the father said, “Not really.” He could not afford it. The wait times for free services are huge. He admitted this would have come to pass by now had he enrolled. He was working until January 2020.
When asked if he was looking for work, the father said it was not as passionately as he once did. He cannot do what he used to do. He used to work in IT. He earned $100,000. When it was put to him that he had found the court and related matters overwhelming, the father responded in the affirmative. “It is what it is.” Nothing can change his relationship with his daughters. He has no job applications at the moment and is not actively looking at work. He is looking at doing something wholly different.
The father confirmed that he had received the Independent Children’s Lawyer’s outline of case. He has not undertaken a parenting program, nor done a post‑separation course. The 25 week Men’s Behaviour Change course is a long time. He does not believe in supervised time. When asked if he was committed to his children, he said, “Obviously.” “Skype would be good.” The Independent Children’s Lawyer’s proposed orders did not make sense. He does not have to prove he is a good dad. There is no proof of threat to the children.
There are no drug issues. Corrections have no issue with his drugs. The mother had asked for eight drug screens and he had done most of them. It was put that he had only undertaken three, but he said that he had done more than that. He provided them to his then lawyer, Mr K. It was put that there were two supervised and one unsupervised screen, but the father said he did not know what was provided to the Court. He confirmed that he had not provided his screens to the Independent Children’s Lawyer when requested on 29 April 2020 and 11 July 2020. He had been told by Corrections that there were no problems with drugs. Drug tests were not necessary.
It was put that he had told Dr I he had been using for 15 years. He disagreed. He agreed that he had done occasional drugs over 15 years. That means occasionally, sometimes, a couple of times a year. It was a gimmick to force him to wait 12 months before seeing the children when there was no proof that the children were harmed. He then went on to say he cannot have a lawyer asking for tests once a month at his cost. He had told Ms Ebejer (the Independent Children’s Lawyer) he would not do two tests.
Counsel put a number of rolled up matters to the father. It was put that he had said he was not vindicative, that the children were brainwashed by the mother and her family, and that he had said that from their family history he knew what they were like. The father responded that his ex‑wife has brainwashed the children on several occasions and the wife’s parents have brainwashed the wife. It runs in the family that they place negative matters in the children’s ears.
It was put to him that going to jail was his fault and that you can break into your own home. The husband refused to accept responsibility for his behaviour. He said this was a bit far‑fetched. It was “his” house. It is still his house even after the intervention order.
It was put that he had told Dr I that the relationship broke down because of the wife’s cheating. He said this might have been said. He had said she had lost her value. “That is what happens when that happens.”
The children are seven and four years of age. He had known the mother from school. The relationship commenced in 2010 and they married in July 2012. They separated under one roof in September 2017. He did not recall the date of the Department of Health and Human Services intervention in July 2018. He was removed, pursuant to the intervention order, in May 2019. He removed himself and did not return from work. He had not seen the children until December 2019. The mother was mostly a good parent. He had made his brainwashing comments. She yells at the children at night, but in general is a good mother.
I invited Mr Rowse to clarify the matters that had originated from the questions put to him and he said initially “nothing”. He then said that the reason he had breached the intervention order was that the only way to contact the mother was to breach them. “That is what happened.” It is not all his fault. He loves the kids. There is no way to see them. He was seeking to force her to let him see them. He was no proof of danger to the children.
The Opening for the Wife
Counsel referred to the issues of the alleged violence, drug use and mental health. It was submitted that the concerns about the father were substantiated, but those about the mother were not. There should be no unsupervised time and he supported the independent children’s lawyer’s position. The amended response was an alternative.
It was a small property pool. There were post‑separation contributions by the wife and this was a Kennon & Kennon [1997] FamCA 27 (“Kennon”) case which also involved adjustments to the wife under section 75(2).
The wife was called and adopted her trial affidavit as true and correct and her financial statement likewise.
The wife was taken to the bank statement and she said $55,000 was the father’s payment and $43,000 was her payment. She had accumulated savings by working from a young age. She always wanted her own home. Of the $43,000, $10,000 was from her parents.
The wife referred to her PayPal account. She logged into her PayPal account to look for the history of paying bills on the internet. She also paid mobile bills and the home phone. The husband never put any money into the joint account.
Under cross‑examination by counsel for the Independent Children’s Lawyer, the mother said she had never instigated any arguments as the husband alleged. She could even get into trouble for the tone of her voice. Counsel traversed paragraph 14 of the husband’s trial affidavit in which he had asserted that she berated, spat at and swore at the father. She said it was the other way around. He would swear at her.
She was cross‑examined about paragraph 15 (the injury to her foot). She said she was going to deny this. They were arguing. Her foot was very swollen and she was on crutches. She did not kick him. It was not a fracture, but a severe swelling. She went to the 24 hour doctor’s clinic. She emailed his mother about this, but was not otherwise on social media.
When cross‑examined about paragraph 16 of the trial affidavit, namely, the alleged threat to kill, the wife became labile. She said he had turned to her and said, “I feel like snapping your neck, it would be so easy.” She denied all the allegations.
She had read the Independent Children’s Lawyer’s case outline. She just wanted the father to be safe around the children. He has a lot of hatred for her. Time should stay supervised and she did not oppose time at a contact centre.
She was prepared to undertake the parenting program and post‑separation courses. She would do this because any knowledge would benefit her. She did not receive child support. She had no problems with the father spending time with the children if he did what was asked.
The father did not, of course, put any questions to the mother, and there was no re‑examination.
Final Submissions by the Independent Children’s Lawyer
Counsel noted the ages of the children and noted that they had lived with the mother since separation. They separated under one roof in 2017 and finally, in May 2019, when the intervention order took place.
The husband is not working, even though he is a technical worker. The mother was a stay at home mother.
The reports of Family consultant H and the Department of Health and Human Services and Dr I were not challenged. Dr I met the father on 6 March 2020. The family contact centre report was not challenged. The Men’s Behaviour Change course was proposed and the father has already started.
In May 2019, the father’s mental health deteriorated at the time of the intervention order. He was incarcerated twice for one night and once for 90 days, of which he served 60. A final order made on 26 June 2019 was made by consent without admissions. The husband breached the intervention order and was given a 12 months CCO. FaceTime and Skype and the like are not opposed.
The father filed a notice of discontinuance in January 2020 by error, and opted to reinstate. Sole parental responsibility was ordered and there were orders for drug screens and for a post‑separation and a Men’s Behaviour Change course. None of these courses have taken place. The father was further remanded in April.
Further orders were made on 5 May. The father was in jail from 15 May to 20 June. It was apparent today that section 190 and 102NA applied. The father opted to continue twice. He had himself put the father’s allegations to the mother, but she became distressed. They are denied in blanket terms. Counsel submitted that cross‑examination would not have assisted the father’s case in any event.
He sought the orders in the case outline. The presumption as to equal shared parental responsibility was rebutted. The children live with the mother who it was described by the father as the best person in the world to look after them.
Orders in October and December 2019 set out the steps for time to occur, but this has not happened. There had only been six visits. The father did not understand he could have done more. The father puts the cart before the horse. Ms G says the father is not able to move on. Dr I’s evidence was qualified. So far as the drug screens was concerned, there was no way of knowing. Two requests from the Independent children’s lawyer were refused.
Notation A to the proposed orders sets out the appropriate steps and final orders with the notation should be made.
Final Submissions of Counsel for the Mother
Counsel adopted the Independent Children’s Lawyer’s position in relation to parenting. The mother had given evidence about family violence. There had been visits to doctors in 2013 and 2014. There was the text message from the husband’s father about her being on crutches. Since separation, the father had persistently breached the intervention order and had conducted threatening and abusing behaviour. His counter‑allegations were implausible and were mainly not in his affidavits.
The DHHS case plan “G-001” spoke for itself. It was thought the father lacked insight. At the 11F interviews he was minimising his conduct. “G-010” was a report dated 1 September 2020 from the Support Service F. This detailed the difficulties that the mother had had as a result of the father’s conduct. The father repossessed the family car because of the intervention order. The mother pushed his buttons. The father cannot accept that his attitude to the mother involves a risk to the children. His evidence about drugs and alcohol was inconsistent. Dr I had qualified his evidence on the day.
Counsel then moved to the question of property. The pool was largely agreed. There are net proceeds of sale of the matrimonial home of $303,319. There are household contents which she values at $5,000 and he values at $7,500. Counsel urged the court to take the mid-point. The husband seeks an add back on the sale of the car, but there was a shortfall because he sold it cheap. He says the shortfall was paid by his father, but there is no evidence of a loan. The wife has added back interim distributions following the March orders.
Counsel submitted the contributions favoured the wife. Her post‑separation contributions were greater, and she had been forced to pay. She had borrowed $10,000 from her parents and repaid them from the interim distribution. She had also paid for Telstra. “G-0007” showed the itemisation of the bills. The husband is not seeking work, and the wife has sole care of the children. The husband paid half the mortgage for a while and paid $320 spousal maintenance until March 2020. There should also be a Kennon adjustment.
The wife is on statutory benefits and has no work history. The husband historically was paid $100,000 per year, but he is not looking for work. The husband has $31,615 in credit card liabilities, and there is a further $3,601 on Visa. Counsel accepted these existed when the husband moved out of the matrimonial home. Financial disclosure was an issue in the case. The wife seeks 74 per cent of the non‑superannuation assets and an equalisation of superannuation. It was a small pool. Contributions should be assessed 57/43 in the wife’s favour, with a further adjustment of 17 per cent for the 75(2) matters. Counsel noted that the father says he is now in the pink of health.
Final Submissions by the Husband
The husband confirms that he seeks a 60/40 split and an equalisation of superannuation. He lost his job because the contract ran out and was not renewed. His performance was lacking. He just lost it after that and needed a rest. He said what he wants about parenting, and does not agree with the mother having sole custody. He said he did not need what had been done to them for the last two years. There is nothing in it of him, and it is not good for the kids. He has been waiting for so long for nothing. The kids are waiting to see him. The loans existed before separation. Banks chase him every week for the money back. It is too much. That is why he had to sell the car. It was in his name, and he got rid of the debt. He wants these burdens off him. He just does not need any of it.
He concluded his submission, as far as my notes reveal the matter, by saying something along the lines that if it was going to take the time, he might not bother, from which I understood him to infer that if orders were made that required his cooperation over a period of time, he might walk away from the children. This final disturbing and very telling remark speaks for itself.
Findings about the Credit of the Parties
It is appropriate to start with a few brief words about the mother. She was not, of course, cross-examined by the father, and as recorded, she became liable when the more distressing aspects of the father’s assertions were put to her. It is sufficient to say, however, that I formed a clear opinion that she was a witness with truth. Her answers about the family violence, including her demeanour while giving them, were extremely believable and very expressive.
The father was a poor witness. I have commented on a number of occasions about aspects of his evidence that were unsatisfactory. Making full allowance for the fact that he was self-represented, and bearing in mind the technology, I nonetheless formed the clear impression that his evidence was unreliable and self-serving.
A number of matters now asserted were not in his affidavits. His assertions that, in effect, this was because he was too nice to the mother are wholly contrary to the entirely accusatory and offensive way he expressed himself about the mother at almost all points. The concessions he made to the effect that the mother was a good mother and the like were, in my view, palpably designed to advance his case and do not, in my view, really express his true opinion. I have heard and seen him give his evidence, and putting the matter shortly, I, by and large, do not believe it.
Statutory Pathway - Goode v Goode [2006] FamCA 1346
I turn now to the statutory pathway which is set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65]:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental Responsibility
There is no question in this instance that the presumption as to equal‑shared parental responsibility is rebutted by the family violence that has taken place. I should make it clear that I have no doubt whatsoever that the father assaulted the mother from time to time, as she has alleged, and I accept her denials of any assaults by her. Not only is the presumption rebutted, but in any event, an order for equal‑shared parental responsibility is completely contraindicated by the evidence as a whole.
The state of communication between the father and the mother is extremely poor. In part, this relates to the mother’s ongoing and reasonable fears about the father. It also reflects the entirely accusatory attitude that the father has towards the mother, and his complete incapacity through his lack of insight to realise his responsibility for the lamentable past history of the matter and the need for him to change. It is immediately and wholly obvious that the mother should have an order for sole parental responsibility, as the Independent Children’s Lawyer seeks.
The Spend-Time Regime
The Primary Considerations
In broad outline, all parties agree that it is to the benefit of the two children to have a meaningful relationship, not only with their mother, but also with their father. It would seem that the elder child, in particular, has a well-settled relationship with her father, even if that of the younger child is more nuanced. The real difficulty, however, is the need to protect the children from physical or psychological harm, this being a matter required to be given greater weight by virtue of section 60CC(2A). The father’s past conduct and his lack of insight into it are matters that militate strongly against the proposals that the father puts forward.
Additional Considerations
Section 60CC(3)(a)
The children have not expressed any detailed or meaningful views as to what they want. It is sufficient to note, however, that the contact centre reports appear to suggest that X has a good relationship with her father, whereas that of Y, as already mentioned, is more nuanced. Given the children’s age, any views they express must be approached with considerable caution, in any event.
Section 60CC(3)(b)
It seems clear that the children have an excellent relationship with their mother, who has always been their primary carer and, in truth, there is no challenge to this proposition. I just dealt with the children’s responses to their father. It should be noted that it is to the father’s credit that X has maintained such a good relationship with him, notwithstanding the limited time they spend together. It is unsurprising, perhaps, that Y, who is so much younger, has been more affected by the absences. It would seem on the brief materials provided that the paternal grandparents love the grandchildren, albeit that they see them rarely.
Section 60CC(3)(c)
The mother’s conduct in making decisions about the children and spending time with them speaks for itself. The father’s position is more difficult. The father has frequently failed to take the opportunity to spend time with the children, and has spent time on only 6 of the 19 or 20 times available. His capacity to spend time with them was, of course, impeded by his incarceration. Nonetheless, for a person who professes such a profound and all-consuming affection for his children, his endeavours to see them have been fitful, even making every allowance for financial difficulties and for the COVID restrictions.
Section 60CC(3)(ca)
The father has, in my view, failed somewhat lamentably in his obligations to provide for the children. True it is that he lost his contract in the early part of 2020, but from his own evidence, this is because he was not performing properly. I am prepared to accept that he has made a conscious decision not to seek work because life has become too much for him. That, of course, is, in the ultimate, more a matter for sympathy than criticism, but the net effect is that he has, in fact, provided very little by way of support to the mother to assist her in the expenses that the children necessarily involve.
Section 60CC(3)(d)
I share the concerns expressed in the Independent Children’s Lawyer’s case outline about moving to unsupervised and/or overnight time in the face of the father’s complete and ongoing lack of insight into his behaviour. Furthermore, the children have not spent anything remotely approaching the time that the father seeks. The reality is that there are still subsisting and very considerable concerns about the father’s self‑control and capacity to safely look after the children. He says that there is no safety risk proved, but that is simply not the case. His personality deficiencies speak for themselves.
It should also be noted, of course, that any increase to unsupervised or overnight time would unquestioningly be extremely concerning and alarming for the mother. She is the full-time and primary carer of the children, and such effects upon the mother would only be likely to affect the children also.
Section 60CC(3)(e)
There do not appear to be any practical difficulties in the children spending time with the father. There may be difficulties as to expense if the father does not address his finances in the event that supervised time is ordered.
Section 60CC(3)(f)
There is no question that the mother has a fully-developed and entirely appropriate capacity to care for the children and to provide for their needs, including emotional and intellectual ones. Although the father has asserted that the mother tried to commit suicide three times during the relationship, there is nothing in the materials, looked at objectively, that says that the mother will not continue to be able to look after the children and care for them in an appropriate fashion.
The mother has asserted significant paranoid behaviour on the part of the father. Dr I’s report did not support that assertion, but I note that Dr I changed his evidence in the light of the matters that were disclosed to him at court. Dr I’s original report was heavily qualified by his reservations as to the extent of truthfulness of the father’s account and his lack of examination of the mother, in any event.
It has to be said that the father’s underlying psychiatric health remains a significant issue at large. These reservations are only buttressed by the father’s conduct leading up to and including the 90 days imprisonment that was ordered upon him. Further, he has failed, and apparently deliberately, to take two drug tests requested by the Independent Children’s Lawyer. All of these matters point to an impaired capacity on the father’s part.
Section 60CC(3)(g)
Although these matters are important, they are, in my view, adequately canvassed in the above matters.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The mother’s attitude to the children and the responsibility of parenthood is straightforward. The father’s is more difficult. He has referred on occasions to what, in effect, are entitlements on his part. He has even gone so far extraordinarily in his final remarks to suggest that if he did not like the court’s judgment, he would simply walk away from his children. His attitude towards the children is deeply disturbing.
I note the correct submission of the Independent Children’s Lawyer that the father was recommended to undertake a Men’s Behaviour Change Program by the DHHS in 2018, and he has still not even completed his course.
Section 60CC(3)(j)
It is clear, given the findings I have made, that there has been significant family violence perpetrated by the father on the mother. In 2018 DHHS found harm as caused by the father, and their case plan included that he attend a Men’s Behavioural Change Program, which he simply did not do. I accept the Independent Children’s Lawyer’s submission that the father places all the blame for breaches of the intervention order on the mother. Family consultant H correctly observed, in my view, he minimised all his conduct and blamed the mother instead.
Section 60CC(3)(k)
Although I have not dealt with this in any detail before, it is noteworthy that the Victoria Police obtained an IVO against the father to protect the mother and the children on 2 October 2014. I accept the mother’s evidence that the father pushed her against a fence and tried to choke her. A further full intervention order was made in 2019, and the father has persistently breached it and been in prison for doing so.
Section 60CC(3)(l)
It is entirely apparent that final orders should be made, subject to the annotation that the Independent Children’s Lawyer seeks, which is, in truth, the only sensible way in which the matter can be dealt with. The mother needs as much relief from these proceedings as the court can properly give her.
Section 60CC(3)(m)
The Independent Children’s Lawyer’s proposed orders require the father to undertake supervised time, paid for, if need be, by himself. The parenting program and Parenting After Separation Program orders are not the subject of dispute and, indeed, have already been ordered in April 2020. The father should be the subject of the Men’s Behaviour Change Program order sought by the Independent Children’s Lawyer.
The notation sought by the Independent Children’s Lawyer is entirely appropriate. The father should not be permitted in any way to re-agitate these proceedings for at least 12 months, and he must address the matters which he has thus far failed to address, which give rise to the concerns that produce this particular outcome.
The mother’s primary position is to support the Independent Children’s Lawyer, and there will be orders in the form set out in the independent children’s lawyer’s case outline.
Property Issues - Stanford & Stanford (2012) 247 CLR 108
In these matters both parties seek a property adjustment. The basis upon which they managed their finances as a couple has radically altered, and it is plainly just and equitable that there should be a property adjustment.
The Pool
Leaving aside superannuation, which both parties agree should be equalised, are:
a)Net proceeds of sale of former matrimonial home held by the wife’s solicitors, $303,319.
b)Interim distribution paid to the husband $27,360.
c)Interim distribution to the wife, $42,640.
d)Wife’s household contents, $5,000 (concession against interest).
There is nothing in the parties’ bank accounts of any moment that has been disclosed.
The wife seeks that the husband’s motor vehicle A be inserted in the pool at $3,400, but the evidence, in my view, is unconvincing. I will allot the figure of $2,500 in the husband’s financial statement as a concession against interest.
The husband’s Westpac personal loan liability, $31,615. Husband’s Visa credit card, $3,001 (both of these are set out in annexures to the husbands trial affidavit). These figures are conceded as having been matrimonial debts at the date of superannuation and should be included.
The wife’s credit card liability is impossible to assess as at the date of separation in 2017. She has deposed to approximately $10,000 worth of assistance from her parents but there is nothing to establish the existence of a loan.
The husband seeks to add back the shortfall on the sale of the family car in the sum of $7,000 allegedly paid by his father. There is no evidence that this money is, indeed, loaned to the father, and there is no evidence of any obligation on him to repay his own father that amount. In any event, he appears to have sold it in some haste, and there would be questions as to whether he was concerned to get the full value, particularly given his asserted incapacity to manage his affairs more generally. I will not include it.
Both parties have drawn on their superannuation in light of the COVID emergency. The wife’s presently is $10,702, and the husband’s is $74,437. There will be orders to equalise these amounts, which both parties seek.
Contribution
I accept the wife’s evidence that the savings of the parties at the commencement of the relationship were $50,000 for the husband and $40,000 for her. Her evidence about her contribution to the purchase of the matrimonial home was extremely convincing, including the $10,000 advanced by her own parents. I further accept that they both received the first home owner’s grant. Furthermore, given the passage of time, any disparity in their contributions would, in my view, be of very limited weight.
Following the commencement of the relationship, the husband earned a good salary, approximately $100,000 per year, and he was the main provider, and the wife was the homemaker. The High Court has made it clear in Mallet v Mallet [1984] 156 CLR 605 that the contributions of the wife should be assessed not at a tokenistic level.
Furthermore, although the matter was not the subject of any detailed submissions so far as my notes reveal the matter, the wife’s Kennon case has real and obvious force in these circumstances. Given the controlling, domineering and violent behaviour of the husband throughout, in effect, the entirety of the relationship, the wife’s performance of her household duties and her commitment and her matrimonial responsibilities was unquestionably made more onerous. It is not appropriate, in my view, to give a precise calibration of the Kennon qualities, save to say that, in my view, the 53/47 assessment the wife seeks is entirely justified.
Future Needs
The wife’s health is apparently unremarkable. She and the husband are much of the same age. Unlike him, however, she is correct to say that she has, in effect, no meaningful employment history. She did work from an early age and was plainly thrifty in being able to amass the savings she had. In the event that she is able to return to work, her future employment prospects are not going to be in any way excessively remunerative. Furthermore, she has the full-time care of these two young children, the youngest of whom is not even yet at school.
The father’s future earning capacity is more open to question. The gravamen of his evidence is that he, effectively, gave up on his employment in 2020 because the final separation and its sequelae, including most particularly his absence from his children, became too much for him. I am prepared to accept that this is so, but there is no reason to think that when the dust clears he will not turn his mind to further employment.
His last employment was ended because he was not performing properly. He is, however, only 35 years old, and there is every reason to suppose that he will obtain employment at a reasonably remunerated level in the future. Whether he will pay any child support unless compelled to do so must be open to the most considerable question. In the light of his history, I find that he will never pay a dollar more than he forced to pay by the Child Support Agency, should that agency be able to garnishee his wages. Indeed, in the light of his disturbing final comments, he may even elect not to see his children at all and not to contribute anything to their wellbeing.
While this last matter is, of course, concerning, I should make it clear that I do not give any considerable weight because it is so wholly uncertain. Even leaving that matter aside, however, the wife is unquestionably entitled to a further adjustment in respect of future needs factors. Combining all these matters together, as one is required to, in my opinion, there should be a further 17 per cent adjustment in favour of the mother.
Conclusion - Just and Equitable
In my view an outcome which gives the wife 70 per cent of the net property pool is in all the circumstances, in my view, just and equitable, especially when the equalisation of superannuation is factored in.
There will be orders accordingly.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 24 November 2020
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Procedural Fairness
-
Remedies
2
2