Salde and Salde (No.2)
[2019] FCCA 1573
•1 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALDE & SALDE (No.2) | [2019] FCCA 1573 |
| Catchwords: FAMILY LAW – Parenting – best interests of child – conduct of parents –- inter parental conflict – allegations of family violence – significant absence of time spent between the children and father – credit of parties – evidence – risk to children – relationship of children with each parent – therapeutic engagement – views of the children – substantive interim orders – PROPERTY – Final property adjustment – section 75(2) adjustments – consideration of financial and non-financial contributions – Robb & Robb argument. |
| Legislation: Family Law Act 1975 (Cth) ss.4, 4AB, 10B, 10D, 10E, 60B, 60CA, 60DAC, 60CC, 61DA, 65DAA(5), 65DA, 68P, 75(2), 78, 106A Evidence Act 1995 (Cth) ss.135, 136 |
| Cases cited: Stevenson & Hughes (1993) 16 Fam LR 443 Salah & Salah [2016] FamCAFC 100 Kennon & Kennon [1997] FamCA 27 |
| Applicant: | MR SALDE |
| Respondent: | MS SALDE |
| File Number: | WOC 615 of 2017 |
| Judgment of: | Judge Harman |
| Hearing date: | 27 March 2019 |
| Date of Last Submission: | 27 March 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 1 April 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Losko Stacks Heard McEwan |
| Solicitors for the Respondent: | Ms Monastiriotis Nexus Lawyers |
| Solicitors for the Independent Children's Lawyer: | Mr Horsley Johnson Horsley Lawyers |
ORDERS
That all prior parenting orders with respect to the children:
(a)[X] born … 2001;
(b)[Y] born … 2006; and,
(c)[Z] born … 2010
shall be and are hereby discharged.
Note: No orders are made with respect to [X].
THE COURT ORDERS PENDING FURTHER ORDER:
That the children’s mother Ms Salde shall have sole parental responsibility with respect to major issues decisions relating to [Y] and [Z].
[Y] and [Z] shall live with their mother Ms Salde.
That [Y] and [Z] shall, subject to the balance of these orders, spend time with their father Mr Salde as agreed between the parents from time to time.
[Z] shall then spend time with her father Mr Salde for such periods and with such frequency as can be accommodated by the Town B Children’s Contact Centre and to facilitate such time:
(a)Each parent shall, within 72 hours, contact the Town B supervised contact Centre to arrange the first available and offered intake appointment and shall then attend that appointment and complete all necessary intake and assessment processes required by and to engage the Centre
(b)Ms Salde shall deliver [Z] to and collect [Z] from the Town B Contact Centre at such times and dates as advised by that Centre;
(c)Each parent shall pay one-half of any fees charged by the Centre.
Each parent shall attend and cause [Y] and [Z] to attend family therapy with a therapist nominated by the ICL and to facilitate such therapy:
(a)Each parent shall, within 7 days of being notified by the ICL of the therapist nominated by them, contact the nominated therapist and complete all necessary intake and assessment processes required by and to engage the therapist to assist and work with the parties and [Y] and [Z] to repair the relationships between [Y] and [Z] and their father;
(b)Each parent shall attend at such times, dates and places as directed by the therapist;
(c)Ms Salde shall ensure that [Y] and [Z] attend upon the therapist as required by the therapist;
(d)Ms Salde shall do all things within his power to encourage [X] to attend upon the therapist as requested by the therapist (noting that [X] will, by the time therapy commences, be an adult);
(e)Ms Salde shall each pay one half of the total costs of the therapy;
(f)The ICL shall be and is hereby authorised to provide to the therapist a copy of the judgement with respect to these orders.
THE COURT ORDERS ON A FINAL BASIS:
Each parent shall facilitate any request made by [Y] and/or [Z] to communicate with their father Mr Salde or their brother [X] by telephone, email or other means.
The father shall ensure that any contact as may occur between [Y] and/or [Z] and their brother Mr C (now an adult and neither party to or the subject of these proceedings) is supervised by him and that [Y] and/or [Z] are not left alone with Mr C.
That until … 2028 (corresponding with [Z]’s 18th birthday) each parent shall:
(a)Provide to the other parent, not less than 28 days written notice (by email) of their intention to change their residential address and including advice of the address to which they shall be moving;
(b)Notify the other parent forthwith and contemporaneous with the event in the case of either [Y] or [Z] experiencing significant injury or illness or being hospitalised and including sufficient detail and authority to enable each parent to speak with and be provide information by any treating doctor;
(c)Do all things, sign all documents and give all consents and authorities necessary to enable each parent to be recorded with any school attended by [Y] and/or [Z] as a parent and so as to enable each parent to obtain directly from the school any reports, information, photos or other materials they may desire;
(d)Refrain from abusing, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of [Y] and/or [Z] and each shall do all within their power to ensure no other person does so;
(e)Refrain from discussing these proceedings or the content of any document filed or tendered in these proceedings with or in the presence or hearing of [Y] and/or [Z] and each shall do all within their power to ensure no other person, save the therapist engaged pursuant to these orders, does so;
(f)Refrain from communicating about the children or these proceedings on any social media platform.
That each of the parties shall forthwith do all things, sign all documents, give all consents, authorities and instructions as are necessary to list for sale an sell the property known as and situated at Street D, Town E by private treaty and at a price, using an real estate agent and solicitor/conveyancer agreed between them and, further and in the event that the parties have not agreed on:
(a)A listing agent by close of business 19 April 2019, then either party may make application to the President for the time being of the Real Estate Institute of NSW for the appointment of an agent and upon the President making an appointment each party shall then do all things, sign all documents and give all consents and authorities as are necessary to retain and instruct that agent including signing a listing agreement and providing such co-operation and assistance as is necessary to allow the property to be listed, advertised, marketed and shown;
(b)A listing and sale price by close of business 19 April, 2019, then either party may request the listing agent to provide written advice as to a realistically achievable sale price on the basis of an eager but not over anxious vendor and the property shall then be listed for sale at a price that is 105% of the price advised by the agent (or at the price at the lower end of any range of price) and the parties shall accept any offer for purchase at or in excess of 95% of the listing price;
(c)A solicitor or conveyancer by close of business 19 April, 2019 then either party may make application to the President for the time being of the Law Society of NSW for the appointment of a solicitor to act on sale and upon the President making an appointment each party shall then do all things, sign all documents and give all consents and authorities as are necessary to retain and instruct that solicitor including signing a costs/retainer agreement and providing such co-operation and assistance as is necessary to allow a contract for sale to be prepared and the property to be sold and conveyed.
That pending the sale of the Town E property Mr Salde shall:
(a)Maintain the property in a neat, fit and proper state of repair and attend to any necessary maintenance and repairs of the property as may be necessary to maintain the property;
(b)Keep the property insured for its full insurable value at all times;
(c)Make all principal and interest payments as and when they fall due with respect to the mortgage encumbering the property;
(d)Make all payments as and when they fall due with respect to Council and Water Rates relating to the property.
Upon completion of any sale of the Town E property as required by these orders, then each of the parties shall do all things, sign all documents and give all consents, authorities and instructions as are necessary to then cause the net proceeds of sale resulting to be distributed as follows and in the following priority:
(a)In discharge of the mortgage encumbering the property;
(b)In adjustment and payment of Council and Water rates;
(c)In payment of sale costs including agent’s commission, auctioneer’s fees and solicitor/conveyancer fees.
(d)In payment to Ms Salde of an amount equal to 37.7% of the nett proceeds then remaining and provided that Ms Salde shall give all instructions and authorities necessary to cause a sum of $5,000 and $1,650 respectively ($6,650 in total) to be deducted from those monies and applied in accordance with orders 14 and 15 hereof;
(e)In payment to Ms Salde of a sum equal to one half of the cost of the report of Dr F and in compliance with order 1(d) of the orders made by consent 23 October, 2017;
(f)As to the balance then remaining to Mr Salde and provided that Mr Salde shall give all instructions and authorities necessary to cause a sum of $5,000 and $1,650 respectively ($6,650 in total) to be deducted from those monies and applied in accordance with orders 14 and 15 hereof.
That upon completion of the sale of the Town E property each party shall cause a sum of $5,000 each ($10,000 in total) to be placed into an account to be opened in the joint names of the parties and which account shall require the consent, authority and/or signature of both parties to effect withdrawals therefrom and:
(a)Those funds shall be used for the sole purpose of paying the costs of the therapist to be engaged pursuant to these orders such that each party shall be restrained from dealing with those monies other than for that purpose; and,
(b)Upon completion of the therapeutic process, as confirmed in writing by the therapist, and in the event that any funds remain within the account then each of the parties shall do all things, sign all documents and give all consents and authorities necessary to close the account and to distribute any remaining funds equally between the parties.
By consent, each party shall, within 72 hours of settlement of the sale of the Town E property, pay to the Legal Aid Commission of NSW a sum of $1,650 as a contribution to the costs of the Independent Children’s Lawyer.
Pursuant to s78 of the Family Law Act 1975 each party shall be and is hereby declared to be the sole and absolute owner at law and in equity as against the other of:
(a)Any motor vehicle in their possession or registered their name.
(b)Any funds held by them whether in cash or on deposit with any financial institution.
(c)All items of furniture, furnishings and contents in respect to custody and control.
(d)All and any items of personalty to other property of any nature in the possession, custody or control of each party respectively.
In the event that either party should fail, neglect or refuse to sign and document required by or to give effect to these orders that, pursuant to s.106A Family Law Act 1975, a Deputy Registrar of the Federal Circuit Court Parramatta shall be and is hereby authorised and directed to sign such document on behalf of and in the place of the party who has failed, neglected or refused to sign and to thereafter do all acts and things necessary to give force, effect and validity to that document.
Remove all financial issues from the list of cases awaiting hearing.
Adjourn balance of parenting proceedings for mention and directions 9:30am 20 September, 2019.
NOTE: On 20 September 2019 and if all parenting issues are not resolved, directions will be made to advance the proceedings to further and final hearing date/s as soon as practicable.
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 under the pseudonym Salde & Salde (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
WOC 615 of 2017
| MR SALDE |
Applicant
And
| MS SALDE |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to both parenting and property adjustment issues.
With respect to the parenting issue the relevant children are:
[X] born … 2001. As would be apparent [X] will, in approximately six weeks’ time, attain his maturity;
[Y] born … 2006. [Y] will soon turn 13; and,
[Z] born … 2010. [Z] will, in a few months’ time, turn nine.
There is also a relevant child, although not a child of the parties, (although that is also a description which might well apply to [X] for reasons that will be discussed), namely, Mr C, now an adult. Mr C figures prominently in the evidence. He is a child from a relationship between Mr Salde and partner pre-dating the relationship of these parties. Mr C lived with these parties for quite some years.
The applicant in these proceedings is Mr Salde, the father of [Y] and [Z]. Whilst not the biological father of [X] he is, very much that child’s emotional father, if one might adopt the American terminology. Certainly, [X] considers Mr Salde, irrespective of any issue of biology, his father.
The respondent is Ms Salde who has now resumed use of her maiden name. She is the mother of all three children, [X], [Y] and [Z].
I propose to deal with the issues between these parties sequentially rather than discussing the evidence applicable to all issues at the same time. That is for a number of reasons. Firstly, the facts are largely separate and distinct. Secondly, there is much more agreed fact with respect to the issue of property adjustment than with respect to the parenting aspects of the case. Thirdly, the determination of the parenting dispute impacts the property proceedings to the extent that section 75(2) factors might or might not be enlivened or given greater weight as a consequence of what occurs in the parenting proceedings. But, otherwise, they are factually very much disconnected. Determination of the parenting aspect of the case has some real relevance, however, as the dispute between the parents involves contested applications as to where [Y] and [Z] should live, whether with their mother, as they presently do, or with their father.
Young [X] is presently living with the father and has done so since separation. [Y] and [Z] have not, since the separation of these parties on 7 March 2017, spent any time or communicated in any meaningful way, with their father.
Young [X] did, for a period of time post-separation, albeit only some few weeks, maintain a relationship with his mother and, importantly, through his mother, he maintained a relationship with his sisters and maternal family.
Since April or May of 2017 those relationships have broken down entirely. The only time when [X] has met or engaged with his sisters has been during appointments for preparation of a Part 15 report in the early part of 2018 - over a year ago.
It must be observed, from the outset, that this case is emblematic of the difficulties of a purely legal response to what are, essentially, relationship issues. Certainly, a legal response is valid and the parties must resolve and determine the “rights” which arise in the proceedings, albeit that they are the rights of their children rather than of the adults. But without address of relationship issues, emotional and psychological issues and social constructs, then in many cases, of which this is an excellent example, there is little that can be achieved by legal process.
As [X] described to the report writer paragraph 68 “It shouldn’t have got this far”. Indeed, it should not.
At the conclusion of the case, it is clear, as will arise, I would hope from a discussion of the evidence, that these children, all three of them, have experienced a degree of trauma in their relationships with their parents and during their respective childhoods. There are many reasons for that.
In the mother’s case two complaints are prominently suggested; firstly, the father and his behaviour towards both mother and children and, secondly, the presence of young Mr C, then a child, within this household.
The father, for his part, denies the former of the above complaints. It is conceded, an agreed fact, that Mr C was a highly troubled young man. He has struggled with gender identity and sexuality, he was, at an early age, regrettably, sexually abused whilst in the care of his mother. He may have other underlying pathologies that have impacted upon his behaviour and presentation as described in the evidence in this case.
I do not, for one moment, seek to pathologize Mr C. He was a young child who was dependent upon others for care, nurture and support. That was clearly denied to him in a safe and appropriate fashion in the care of his mother who, having relocated inter-State with him following the breakdown of the relationship between she and Mr Salde, re-partnered and that partner was the person who perpetrated abuse upon Mr C. It is suggested in Mr Salde’s evidence, and I accept, that this perpetrator was serving, if he is not, in fact, still serving, a custodial sentence with respect to that behaviour. All of those events in young Mr C’s life made him a very difficult person to be around at points in his life, particularly during his adolescence.
[Y] and [Z]’s relationships with their father and with [X], (and possibly [X]’s relationship with his mother and sisters), have not, since separation, and for reasons that I will discuss, been supported or encouraged. That is particularly so in relation to [Y] and [Z].
This lack of support for [Y] and [Z]’s relationships has not been successfully addressed through the therapeutic intervention of family counselling services, albeit, styled in an order, made by consent on an early return date of the proceedings, as family therapy. Both [Y] and [Z] have participated with a family counselling service, as have both parents. It would not appear to have changed the attitude of any of those persons. It has certainly not seen change of or in any circumstance.
This is a family for which an early and intensive therapeutic intervention was required. But it has not been received. That is perhaps for two reasons. Firstly, the service to which the parties were referred is funded to provide family counselling services as defined in s.10B Family Law Act 1975 (Cth). The service does not have the resources to provide the type of intensive intervention that was sought and envisaged by this family. Each of the parties has given evidence that they were seen individually, as were the children, and each seen by a different person within that organisation. That is how family counselling services are intended to be delivered. But that is not what this family needed.
I make clear that this is, in no way, a criticism of the service delivery of that organisation. It is how such services are delivered within funding parameters. That is because family counselling, the service provided by the agency, irrespective of the parties’ description of that intervention as “family therapy”, is defined in fairly narrow terms within the Act.
At section 10B of the Family Law Act 1975, family counselling is defined as:
A process in which a family counsellor helps one or more persons deal with personal and interpersonal issues or, one or more persons (including children), who are affected or likely to be affected by separation, to deal with personal and interpersonal issues or issues relating to the care of children.
Family counselling is intended to be somewhat educative. But its primary purpose is support and assistance, to get parties through the difficult process that is separation. The agency has done that. They have done it appropriately and within the terms of their funding agreement. It is not, however, the intervention that this family needed.
The process that this family needed would appear to have been identified by the parties themselves, at an early stage, by consenting to an order which directed them to participate in “family therapy” even though that is not and was never going to be the service they received. They needed a person or team of persons to work intensively with their family, to challenge beliefs and assumptions, identify and modify harmful or unhelpful attitudes and behaviours and to help this family and these children to resume and support the practice of relationships.
That was identified as necessary at an early stage, a year ago, by the Part 15 report prepared in these proceedings. Yet, since that time, and notwithstanding that both parties have given evidence in these proceedings that they desire such therapeutic intervention, no step has been taken to make it so. The parties have, instead, invested their time and effort in this litigation, perhaps, explicably so, and particularly since April 2017, when the goal posts were, as it might be described, picked up and transported some distance, by Mr Salde and the filing of an Amended Application which changed the relief he sought from time and communication with the girls to having them live with him. Not even a player with the extraordinary talent of [Z] can kick a ball through such moving goalposts.
Beyond the parents and children, it is also clear that extended family, particularly maternal extended family, and the mother’s friend or possibly partner, Mr G, have played a significant and negative role in the children’s attitudes and relationships as well as having some active role to play, at least in the case of Mr G, in these proceedings.
Of course, any order that is made by this Court, past, present or future, does not bind these third persons. The Court can only bind the parties, the mother and father. The parties can do what is within their power to direct and control their family members and others but they must first understand that they can do so and that it is important that they do so.
The suggestion that extended family have been unhelpful is not plucked from the air. It is based, for example, on [X]’s comments to the report writer, (paragraph 69).
The parents agreed to engage with a therapeutic process and yet, sadly, as already indicated, nothing has been done by them to make it so. That might cast some real doubt upon the veracity or genuineness of their collective assertion that they want things to be better. Certainly, from the Part 15 report writer’s perspective, it is concerning, as the report writer described, during their cross-examination, that without an earnest desire, a genuine commitment to change in engaging in such a service, such interventions are unlikely to have great success. After all, whilst the Court can mandate a therapeutic intervention the Court cannot mandate a therapeutic outcome. That is for the parties.
Since the separation of these parents, a little over two years ago now, neither of them has acted in a fashion that has permitted the address of the underlying relationship issues. That is something which must be explored, perhaps unbundled, in these reasons.
I accept that [X], in particular, has, since separation, desired a relationship with not only his mother but his sisters and his maternal family. There is certainly the period of April/May 2017 when that relationship was practiced and before that relationship broke down. At that time, the mother (as she describes) was not only upset by [X]’s behaviour and his decision to remain living with Mr Salde but perhaps also angry (as the evidence would support). At that point [X] was also angry for reasons that will become apparent in the discussion of the evidence. But since that time, nothing would appear to have been done to address that breakdown in relationship and tragically so (see paragraphs 69, 70 and 106 to 109 inclusive of the family report).
The unwillingness of the mother to actively address her relationship with [X] extends to the point where, as part of the report interviews, the suggestion was raised that [X] might meet with his mother. That was rejected, not by [X], but by his mother, although not completely and totally (see paragraph 142 Report). The mother suggests, during her cross-examination, that it was her desire that any resumption of the relationship be aided by some form of counselling and that any reunification, at least at first instance, occur in the presence of such a counsellor. But what was done to achieve that end, particularly since the release of the report (recommending that step as a matter of urgency) and more than 12 months ago? Nothing at all.
Even though [X] is described by the report writer as aligned with his father, I accept [X] as an accurate historian. Thankfully, he is not yet 18 years of age otherwise he may well have been called as a witness in the father’s case. Mr Salde was clear that [X] wished to attend Court and the only reason that he did commission an affidavit from him is because he not yet 18.
When [X] met with the report writer, he gave a clear context to the breakdown of the relationship, not only of these parties, but between him and his mother. [X]’s statements are not inconsistent with the mother’s own evidence. That is of some real importance particularly as regards allegations of family violence raised in these proceedings and particularly allegations raised by Ms Salde, suggesting that the father has visited family violence, if not abuse, upon all three children, but particularly the girls. [X]’s evidence via the family report is, I am satisfied, the most objective and the most likely to be accurate. I will turn to that evidence in due course.
Delay has also not helped this family, as will be discussed. Attempts have been made to hear the case on an expedited basis but they have failed for a number of reasons.
History of proceedings
The matter was commenced by an Application Initiating Proceedings filed on 7 June 2017. The matter was commenced in the Wollongong Registry of the Court. Both parties live in Wollongong and the proceedings belong, if that term might be used, in Wollongong.
At the time that the application was commenced I was conducting circuit duties in Wollongong. It is because of the termination of that practice that the matter has followed me to this Registry in an attempt to have the matter heard more quickly.
The proceedings first came before the Court on 30 August 2017. On that date both parties appeared. Both parties had filed material. Both parties were legally represented. A number of orders were made by consent as between the parties. Those orders did not substantially affect anything which has occurred since. Orders were made that [Y] and [Z] would live with their mother and that [X] would live with the father.
There is some question as to the validity of the order regarding [X] on the basis that, it would now appear common ground, that Mr Salde is not the biological father of [X]. [X]’s biological father is and has, since [X]’s birth, been completely uninvolved in [X]’s life. However, [X]’s father is a party as of right. He should have been served. He has not been although I accept that nothing is known of his whereabouts that would permit it to be so. As I do not propose to make orders with respect to [X] it is less of a concern.
On the first return date orders were made for [X] to spend time with his mother in accordance with his wishes. That would appear to have been frustrated as [X] has clearly expressed, at least to the family report writer, a wish to spend time with his mother, maternal family and sisters. Neither party would appear to have taken any substantial step to act upon that wish as expressed by [X] or to cause that wish to be fulfilled. One would think that an order for a child to spend time in accordance with his wishes creates an obligation to ascertain those wishes and to act upon them (see, for example, the discussion of such obligations by Fogarty J and Nygh J in Stevenson & Hughes (1993) 16 Fam LR 443). To fulfil [X]’s wish, these parties should have done all within their power to make it so and yet each has considered themselves powerless. They have been mistaken in that assessment of their power.
Orders were made, as already described, for the parties to engage in family therapy with Anglicare. The order is problematic for three reasons. Firstly, “family therapy” is not a service provided by Anglicare. Anglicare provides family counselling services funded by the Attorney-General’s department.
Secondly, the language that is used might be suggested to cause issue as to confidentiality and the admissibility of communications which have occurred within that process, however it might have been interpreted, defined or delivered. The confidentiality and inadmissibility provisions which apply to family counselling (ss.10D and 10E Family Law Act 1975) could be argued to have not been enlivened when the parties are referred for a process not described as family counselling. The issue, thankfully, is not taken. Indeed, at an earlier point in the proceedings, subpoenas addressed to Anglicare were struck out on the basis that they have sought to interfere with and reveal protected confidences, offensive to s.10E of the Act. I am satisfied that an argument seeking to draw such a distinction would be erroneous. A thing is what it is not what it is called. However the parties may have expressed the order, I am satisfied that the service delivered by Anglicare was, in fact, family counselling.
Thirdly, it is problematic as the service that the parties have engaged with, intending no criticism of either the service or the parties, simply could not provide the assistance that was and is so badly needed by this family.
Determined by the Court, on that first return date, was an application regarding the children’s time and communication with their father. Orders were made that [Y] and [Z] would spend time with their father each Sunday from 10.00 am until 6.00 pm, extending until 7.00 pm during daylight savings, as well as periods Friday through to Monday each alternate weekend during school holidays and for a period at Christmas 2017. It was anticipated that the matter would be heard before the end of 2108 and, thus, no provision was made for subsequent Christmas events. As it transpired, the matter could not be heard in that period although, as not a single period of time has occurred as ordered, the absence of provision for Christmas 2018 was inconsequential.
Orders were also made for telephone communication to occur between the girls and their father each Tuesday and Thursday between 4.30 and 5.00 pm as well as specific orders as to how communication would be facilitated. The father was to telephone and the mother was to assist the children, to the extent that they required assistance, in answering the telephone and to otherwise permit the children to speak without interruption or distraction and with privacy. The mother was required to do all things within her power to ensure that no other person interfered with that privacy.
Orders were made with respect to the receipt of information by both parties. It was noted that the orders potentially created some inconsistency with an extant family violence order and reasons given as to why the order was still made, even though such inconsistency might arise. The order was, accordingly, forwarded to all relevant agencies identified by section 68P. No complaint was raised by any relevant agency.
Following the making of those orders an appeal was filed by the mother. The mother was entitled to exercise her right to appeal. It is simply to acknowledge that it occurred. The appeal was, perhaps, a reflection of Ms Salde’s strength of feeling regarding the desirability or otherwise of the children not practicing a relationship with their father.
Following the filing of that appeal, and on 23 October 2017, the proceedings again came before the Court. The matter was listed for expeditious hearing for no reason other than the availability of dates and the complaint by the father that the children were not practising a relationship with him or communicating with him, notwithstanding, the above orders. The mother complained that this arose as a consequence of the children’s distress at the prospect. As time was not occurring, a stay was not sought and was not necessary.
In addition to listing the matter for trial an Independent Children’s Lawyer was appointed.
Trial dates were fixed in May 2018. At that point, the matter was still before the Wollongong Registry, but the hearing was scheduled in my last week of sitting in that Registry. The matter could not proceed on the allocated dates and was marked not reached.
Enquiries were made and it was clear that it was not possible to list the matter before any other judicial officer in Wollongong before the end of the year. Accordingly, the proceedings were, with the consent of the parties, transferred to the Parramatta Registry, where earlier hearing dates were then available. Regrettably, it came to pass that the matter could not proceed on the dates that had been fixed. That arose through no fault of the parties, merely changes in the judicial calendar.
Fresh dates were allocated to the matter. The matter was listed as a standalone, special fixture, to ensure that the matter could proceed and proceed without interruption. The matter did, in fact, proceed. The hearing of the proceedings occupied all three days of trial 25 to 27 March 2019 and completed within that time as a consequence of the erudition and good graces of Counsel for each of the parties and the Independent Children’s Lawyer.
The matter has not required any significant number of Court events but it is regrettable that it has not reached a conclusion more quickly. That said the matter has been finalised in a little over 18 months which, in light of present delays, created by an absence of resources, is somewhat extraordinary. I do not suggest for one moment, however, that the parties would feel any relief with such a statement. For them it has been a significant period of their lives on hold, children not practicing a relationship with each other let alone with each of the parties, or their extended families, and general financial disadvantage as a consequence of the cost of the proceedings. Each of the parties has identified, in their cost disclosure document, tendered during the proceedings, that their costs to date are approaching if not, in fact, $100,000.
The parties’ proposals and the proposals of the Independent Children’s Lawyer
The principle position of the applicant father is as set out in his Amended Initiating Application filed on 27 April 2018. By that application, the father seeks to discharge all existing orders in relation to [X], [Y] and [Z], for the parents to have equal shared responsibility of the three children and for all three children to live with the father.
Curiously, the father seeks an order, again, no criticism of him, that the family continue to facilitate the children’s attendance with Anglicare for the purpose of family therapy, perhaps better described as family counselling.
The father proposes, by his application, that for a period of 10 weeks following the children’s transition into his care, that they spend no face to face time with their mother but communicate via telephone. At the expiration of that period, the father proposes alternate weekend time, Friday to Sunday, together with periods during school holidays and on certain special occasions.
In relation to property adjustment, the father proposes that he retain a parcel of real estate at Town E, of which he is the sole registered proprietor, and that all other property lay where it lay, each retaining such property or resources as are in their possession, custody or control. The net effect of that arrangement is something at or approaching a 100 to 0 per cent division between the parties. During closing submissions this was appropriately conceded by Counsel for the father as unattainable. Indeed, it is.
I appreciate and understand the intent and purpose of the orders that the father seeks in circumstances whereby the father is unable to rehouse himself if the property is sold, or at least not in accommodation owned by him. However, that does not obviate against the requirement to not lightly invoke the Court’s coercive power and to only prosecute an application which has reasonable prospect of success.
An alternate proposition was put, in submissions, wherein, if the children were to remain living with their mother, that there would be a finding of 15 per cent contribution by the wife and perhaps a 5 per cent adjustment with respect to section 75(2). Even that is somewhat miserly having regard to the agreed evidence.
The mother’s proposal, in accordance with her Amended Response filed 11 May 2018, is that all existing orders with respect to the three children be discharged, that the mother have sole parental responsibility for [Y] and [Z] and that they live with her. It is proposed by the mother that:
Unless agreed between the parties in writing, the children [Y] and [Z] spend no time with the father.
In the earlier iteration of the mother’s Response, it was proposed that [Y] and [Z] would spend time with their father as agreed between the parents and in accordance with the children’s wishes. The same net effect is achieved on either version of relief.
The mother proposes an order that [X] spend time with his mother in accordance with his wishes although no order is proposed with respect to parental responsibility or that child living with Mr Salde. Perhaps disingenuously, perhaps an oversight. In any event, this is certainly the reality that presently subsists and will continue.
The mother also proposes that the children and parents continue to participate in a process with Anglicare notwithstanding that it has achieved no benefit to them. That is not through lack of effort by the agency I hasten to add. A number of other orders are sought with respect to the provision of information by the parents each to the other.
In relation to property, the mother proposes that the Town E home be sold and the proceeds divided on a 60/40 basis in favour of the husband, acknowledging the significant initial contribution made by Mr Salde, he having purchased the property quite some years prior to the relationship, (hence his being the sole registered proprietor of the property) and that the property having been, until a point during the relationship when certain funds were borrowed to fund renovations, unencumbered. The property is now encumbered by a modest mortgage, approximately $42,000.
The Independent Children’s Lawyer did not express a position at the commencement of the trial. At the conclusion of the trial the Independent Children’s Lawyer tendered a minute (exhibit ICL1). Thereby, the Independent Children’s Lawyer proposed that all prior orders be discharged, that the parents have equal shared parental responsibility for [Y] and [Z] and that [Y] and [Z] live with their mother and spend time with their father as agreed between the parties.
The difficulty with any order for time “as agreed”, by reference to the evidence and especially that of the children’s views, is that this would mean no time or communication occurring. This is not expressed as a difficulty for any other reason than as discussed with respect to the mother’s variance between Response and Amended Response - the same net effect is achieved albeit with a more positive expression.
Notwithstanding the above, orders were proposed by the Independent Children’s Lawyer for a graduated regime such that [Z], at least, would spend time with her father, for a period of some months, for two hours each third Sunday. It was proposed that this time would be supervised by a professional supervising service. Thereafter, time would build to time each Sunday from 10am until 5pm without supervision.
Orders are proposed by the Independent Children’s Lawyer for family therapy with a professionally engaged therapist intended and trained to provide such a service. It would be at the expense of the parties and possibly a significant expense. Hence, an order has been proposed, not only by the Independent Children’s Lawyer but by Senior Counsel for the mother, that a sum of $10,000 be set aside to ensure that there are funds available to meet the cost of much-needed therapy. The only issue between the parties is the extent of contribution to that fund by each of the mother and father.
A number of further orders were proposed with respect to telephone communication and the like. I will return to those proposals once I have discussed the evidence and the legislative provisions.
Material Considered
Each of the parties and the Independent Children’s Lawyer have provided a Case Outline Document that enumerates the material relied upon. However, for the sake of completeness, I propose to enumerate that material.
The father relies upon:
a)An Amended Initiating Application filed 27 April 2018;
b)A trial affidavit sworn 27 April 2018;
c)A further affidavit, 11 May 2018;
d)Whilst not enumerated within the case outline document, the father does, in fact, also rely upon a third and brief updating affidavit sworn on 20 March 2019;
e)Financial Statement filed 21 March 2019;
f)Notice of Risk filed 7 June 2017.
The case outline document is also considered as an aide-mémoire and sets out skeletal submissions.
In the case of the mother, I have read and considered each of the following:
a)The Amended Response filed 11 May 2018;
b)Notice of Risk filed 25 August 2017;
c)Trial affidavit sworn or affirmed 1 May 2018;
d)Affidavit of Mr G affirmed 1 May 2018;
e)A proof of evidence provided by the mother during the trial, exhibit R7;
f)Financial Statement sworn or affirmed 1 May 2018.
I have the case outline document from Senior Counsel for the mother, considered as an aide-mémoire and skeletal outline of submissions.
The Independent Children’s Lawyer’s case outline is considered, as is the report in the proceedings, exhibit A, prepared by Dr F. The report was released by order 16 April 2018. There is the minute of orders tendered by the Independent Children’s Lawyer, exhibit ICL1.
There are a significant number of exhibits:
a)A1, a letter by the father to the Local Court tagged AF5;
b)A2, material from School H;
c)A3, a schedule of school enrolment records;
d)A4, school counsellor’s records;
e)A5, costs-disclosure;
f)R1, letters from doctors regarding the father’s medication;
g)R2, material from the psychologist attended by [Y];
h)R3, material from New South Wales Police;
i)R4, a statement of the mother given to police 11 March 2017, and a letter from the father to the mother tagged M18, which was, at least in part, the basis for a charge of breach of apprehended domestic violence order preferred against the father and with respect to which a guilty conviction has been recorded;
j)R5, attendance records for [X] at School J;
k)R6, medical records as tagged;
l)R7, the mother’s proof of evidence described above;
m)R8, semester 1 and 2 2018 reports for the children;
n)R9, Region K Health notes relating to [Y];
o)R10, further notes from the Region K Health Service;
p)R11, records from Town L Medical Centre;
q)R12, material from the Local Court Town B relating to proceedings in 2003, or thereabouts, between the father and his former partner, the mother of Mr C;
r)R13, a minute of orders proposed by the mother confined solely to the issue of funding for therapy;
s)R14, costs disclosure;
t)R15, a current AVO between the parties;
u)R16, Balance Sheet.
In the Independent Children’s Lawyer’s case there is the minute already described, exhibit ICL1, together with further material from New South Wales Police, ICL 2.
The evidence in the parenting case has substantially focused upon [Y]. Indeed, it would be fair to describe that the preponderance of evidence relates to [Y] who, clearly, experiences a number of difficulties in her young life, focused upon anxiety and phobias. There is far less focus, in the evidence, upon [Z] and [X], regrettably so, as they are special and unique children, the consideration of whose welfare is just as important.
In relation to [Z], there are no significant issues raised with respect to her health, emotional or physiological, save suggestions that she has experienced, for some years, both prior to and post-separation, difficulties with soiling. It is suggested, in the mother’s case, that these difficulties have increased following separation and particularly around the girls’ preparation for and presence during intended changeovers to facilitate their time with the father. However, there is a dearth of independent evidence to corroborate the mother’s allegation in that regard. Further, difficulties arise as a consequence of aspects of the mother’s evidence that I will turn to shortly, particularly connected with the mother’s place of residence and the steps, if any, that she took to facilitate time with the father in accordance with the orders made by this Court 30 August 2017.
Before turning to credit, I make very clear that whilst credit is a significant issue in this case it does not determine the outcome of the parenting proceedings. The Court is bound to, and is focused upon, making a decision that is in the best interests of the children. Credit purely assists in determining what findings of fact are available to the Court, such that the law can then be applied in seeking to determine the children’s best interests.
The Court does not respond retributively or punitively in the event that an adverse finding of credit is made. That is not the purpose of such findings. As there are significant factual issues, however, it is important that credit be considered.
The father, in many respects, was more credible in his evidence than the mother, although not entirely so. To the extent that it is submitted by Counsel for the father that, if the mother is found to have misled the Court, to have been untruthful, to have been less than frank, candid, or correct or, as was directly put by Counsel for the father, to have lied, that she should be disbelieved with respect to all of her evidence, and the father accepted. That is not a consequence that flows automatically.
Firstly, it is possible for a party to be disbelieved with respect to aspects of their evidence without being totally disbelieved. This is one such case. Secondly, one party lacking credit in relation to any allegation that they raise does not automatically lead to the acceptance of the other party’s allegation. It may be that both are found to have issues with their credit. Indeed, that is so in this case.
For example, the father alleges that the parties had met and commenced their relationship with each other in 2000. The evidence would appear clear that this was not so. The parties commenced cohabitation well after the birth of [X]. At the time of [X]’s conception and birth the mother was living with her parents. It is less clear whether the parties had actually met each other at the time of [X]’s conception. But, most assuredly, no issue was raised at trial as to the biological paternity of [X]. Accordingly, to that extent, the father is simply wrong.
Similarly, as Senior Counsel for the mother points out, the father’s material filed in the proceedings between Ms M, the mother of Mr C, relating to that child’s welfare, those documents being sworn or affirmed in 2003, make no reference whatsoever to Ms Salde or the father’s suggested relationship with her at that point in time. That may be an omission. It may be that the father is again, simply wrong.
That is not to suggest, however, that the mother can be believed on a number of significant issues.
Certainly, one aspect that is clear and demonstrated by objective evidence, and, to that extent, potentially corroborative of the mother’s allegation, is the present attitude of [Y] towards the father.
[Z] is suggested to have a very similar attitude, rejecting the father completely, distressed by the mention of his name or the suggestion of a relationship between she and the father or, for that matter, a relationship with her elder brother, [X], resuming. However, there is a dearth of independent evidence relating to young [Z]. There is only the mother’s evidence and that which was observed and reported by the report writer. The two rarely sit comfortably together.
The mother has been less than frank at times and, I am satisfied, misleading on issues of importance. This includes a lack of candour, if not untruthfulness, regarding the timing of her move to the Town N area, her support of the relationship between the girls and the father, (and, for that matter, between the girls and their brother, [X]), compliance with the orders that were made on 30 August 2017 and the vexed issue of the aetiology of the breakdown in the relationship between [X] and his entire maternal family and his sisters as a consequence of [X] being advised of issues in relation to his paternity.
I propose to discuss a number of the significant factual issues, whether significant for the purpose of determining issues between the parties or suggested by the parties to be significant, before turning to the legislative provisions which must be considered.
Mother’s Relationship with Mr G
I start with this issue as Mr G looms large in the evidence. He is, on the father’s case, somewhat demonised and on the mother’s case, somewhat eulogised. Neither is accurate. He is suggested by the mother to be a protective force who is there for the mother at all times of stress, including transporting her to a number of events of significance including the family report interviews, something ultimately conceded, at least by Mr G, as having been, perhaps, unhelpful.
I am invited by Counsel for the father to make a finding that the mother is in or has been, at some point in the past in, a de facto relationship or, at least, a romantic or intimate relationship with Mr G. This is denied by Ms Salde. Whilst Ms Salde concedes that she included Mr G as her “partner” on the girls’ school enrolment records, upon her moving to the Town N area, she stridently denies that he is, or has ever been, her partner and she asserts that they are not, and have never been, in an intimate relationship with each other.
Whilst I am invited to make that finding, I am not satisfied that it is relevant or necessary to do so. It is a significant focus of the parties, not only in this litigation but in other contexts. It is not a fact that needs to be found to determine this case. It seems probable that the mother is, or has been, in a relationship of some sort with Mr G. Whether it seems probable or not is not the test. It is not an issue of such relevance that any finding of fact need be made.
I have described it as “seemingly probable” not only in light of the mother having recorded Mr G as her partner, her having moved to the very area where he was living, the Town N area, but having also referred, at one point in time, on her Facebook page as “in a relationship” with Mr G. That, however, is only something that is known as a consequence of Mr Salde’s deceptive conduct, his chicanery in pretending to be a 17 year old boy, a friend of [X], and his sending a friend request to Ms Salde which she accepted before very quickly defriending the relevant named person upon seeing Mr Salde’s email address as the address for that account. This was the circumstance which led to the extension of an AVO which was, at that point in time, shortly to expire, but, as a consequence of those behaviours, extended so that it is still on foot now.
It is also difficult to understand why the mother, to take her evidence during cross-examination at face value, would list Mr G as her partner for the purpose of the children’s schooling in the Town N area when it was both her evidence, and that of Mr G, that, by the time the children started school in that area in 2018, that Mr G was not living at Town N but in the Town E/Town O area, some 90 minutes away. Ms Salde’s evidence was that she had put him down as he was living in the area. Mr G’s evidence, if accepted, is that he was not. Perhaps that might be a basis to not accept Mr G’s evidence, at least on that issue. But, again, nothing of significance turns upon it and, thus, I do not propose to pursue the issue further. It is addressed purely to engage with the submission that was put on behalf of Mr Salde, no doubt on instructions, that such a finding should be made.
[X] being informed of his Biological Paternity
I accept and find that it is probable that the mother told young [X] that it was so. There is controversy between the parents on this point.
Mr Salde suggests that [X] returned home from a visit with his mother and maternal grandparents, (grandparents with whom he was previously close and, certainly to the report writer, expressed real sadness at that relationship not being practiced) and indicated to Mr Salde that both his mother and maternal grandfather had told him that Mr Salde was not his father.
Ms Salde denies that this occurred. She suggests, although it is in her cross-examination rather than her evidence in-chief, that [X] came to her, angry, pinning her by the arms, demanding to be told who his real father is, thus inferring that it had been raised with him by Mr Salde. The mother says that, at that point in time, however it is that [X] became aware of the issue of his biological paternity, that she was upset with [X]. Mr Salde and [X] describe that she was angry with [X], as were other maternal family members and possibly Mr G.
The important issue, however, is that [X] is really clear. As I have already indicated, I accept him as an accurate historian, at least to the extent that he is reported by Dr F, that he was told by his mother and grandfather. Ms Salde points, rhetorically, during her cross-examination to motive, “Why would I tell him that?”
One motive might be to cause disquiet in the young lad’s mind and to have him then leave Mr Salde’s care and come to hers. Ultimately, that is a plausible motive and explanation, but I need not pursue it to the point of a finding. It might also be equally probable, as regards motive, that Mr Salde may have raised it with the lad so as to cause some resentment by [X] towards his mother, although that is, I am satisfied, less probable.
The real difficulty arises from the mother’s evidence. Her affidavit affirmed on 25 August 2017 indicates that [X] is entirely unaware of the issue. Clearly, he was fully aware of the issue at the time the mother swore that affidavit. The mother had referred to it in police statements, she referred to it in her cross-examination in these proceedings, placing the child’s anger towards her with respect to the issue no later than April 2017, a full three months before she swore the affidavit saying young [X] was oblivious.
The mother raised the issue in her statement to police days after separation on 11 March 2017. Why she considered that necessary is entirely unexplained. It was irrelevant for the purpose of the complaints made with respect to the father’s suggested family violence towards the mother.
In her proof of evidence, exhibit R7, Ms Salde says that “on or around 2017” [X] raised with her the issue of paternity in the circumstances described above. There are just too many inconsistencies in the mother’s evidence on that issue to accept her as a witness of truth.
I accept, accordingly, and find, as already indicated, that [X] was, in all probability, informed by his mother that Mr Salde was not his biological father. A cruel act perhaps, certainly inexplicable and unnecessary. I accept, also, that it has had a profound effect on [X]. He was, at that time, extremely angry with his mother, and I accept his mother was angry with him. It has led to the entire breakdown of his relationship with people whom he loves: his maternal family, in its entirety, as well as his sisters.
Thankfully, it has not led to the breakdown in his relationship with Mr Salde. He still has a parent. I do not propose to create controversy using that term in light of present High Court litigation or previous determinations of the Full Court as to the appropriate circumstances in which the term is used. However, it is [X]’s very real perception and acceptance of Mr Salde as his father irrespective of biology. It has also had a profound effect upon [X] and, I am satisfied, by reference to the exhibit tendered and referred to above, [X]’s school attendance, atrocious as it was in 2017, in particular. The revelation to [X] that the person he had believed to be his father was not has caused [X] real emotional upset and disturbance which has impacted upon that area of his life.
The mother’s move to Town N
The mother moved to Town P, in the Town N area, at some point in time during 2017.
The mother suggests that it was in December 2017 and so that the children could commence school in the area in the 2018 school year. The father opines – and it is perhaps best described as an opinion as he is in no position to know as a matter of certainty – that the move was in June or July of 2017, indeed, prior to the interim hearing that occurred on 30 August 2017.
The mother’s first mention of her move to the area was a letter addressed by her legal representatives to the father’s dated 28 March 2018, coming at least three or four months after the move was suggested by her to have occurred, if not many more months. That is annexure K to the husband’s trial affidavit. The mother’s first mention to the Court of such a move was her trial affidavit 1 May 2018.
The father annexes to his trial affidavit the mother’s lease for those premises, annexure L. The lease is dated 27 June 2017. The date on the document is difficult to read, it is either a 6 or an 8 denoting June or August. However, the father also annexes the mother’s bond receipt. It was lodged by the landlord on 3 August so, presumably, the June date must be correct. The bond would not have been paid some weeks before the lease was signed. There would have been some delay after its payment before it was lodged.
The mother, in her evidence, (paragraph 209), indicates that she moved in December 2017 even though she had entered into the lease in June 2017. She suggests that she stayed living with her parents in that period of five months and paid the rent for the rented property, notwithstanding that she has wholly depended upon Centrelink benefits. She does, however, receive some small and modest assistance in relation to the rent.
However, I simply do not accept that is so. That is not, simply, on the basis of disbelieving the mother for the sake of the exercise. It is based on the balance of the evidence to which I turn.
During his cross-examination, Mr G was taken to a COPS event entry in relation to an attendance by Police at the mother’s rented premises in the Town N area. The Police attendance occurred on 9 August. Mr G, when asked about that - he was present and opened the door, suggesting to Police that the mother was in the shower – indicated that the mother was living at those premises at that date, that is well prior to December.
There is also a curious police report of 10 September 2017 - not a report, I hasten to add, by the mother to Police, although there have been several of those – it is a report by the maternal grandparents, those at the address at which the mother suggests she was, at that date, living. It is worth considering the event in detail as it impacts a number of other areas of significance in the evidence.
The event refers to the mother as PN2 and the father as PN1. I will refer to the parties as mother and father. It reads:
The two witnesses are the parents of the mother. The mother and father used to be in a relationship and have two children together.
I pause to observe that, again, the clear issue of [X]’s biology is raised therein by the exclusion of [X] as a child of the relationship.
It continues -
The mother was living with her parents but now lives at Town N. Due to an AVO being granted between the parties, the father has not seen his children for approximately three months.
Again, I pause to observe that it is not the existence of the AVO that had caused the father to not see his children or to not see them for three months. He had not seen them for six months, since the parties separated, and that was because the mother did not facilitate the relationship.
The Police event record continues -
Two weeks ago [that being 30 August, no doubt] the father, mother and both witnesses have attended Court in Wollongong in relation to the custody of the children. As a result of this Court date, the magistrate [indeed, judge] has made recommendations [indeed, orders] so the father can visit his children on Sunday from 10.00 am, and can call them on the phone two days during the week. Since this recommendation being made, the mother, on the last two weekends, has taken the children down to an address in Town Q and stayed there over the weekend. The mother has not informed the father where their children are and, as far as the father was concerned, his children are at the grandparents’ home.
On Sunday 3 September 2017 the father has turned up to see his children and was informed they were not at the location. The father’s evidence, paragraph 16A, is that he attended to collect the children on that date with his father and with [X]. It is suggested that the paternal grandfather left the car and knocked on the door but no one appeared to be home. It would seem from this COPS event entry that the maternal grandparents were at home but simply did not open the door.
There is discrepancy between the grandparents’ suggestion that they spoke to somebody, whether the father or paternal grandfather, or whether there was no one there. There was certainly no dispute, from that contained within the COPS entry, that the children were not there. The father left without incident.
On Sunday 10 September 2017 the father again turned up at the agreed time, with his father. The father indicates, paragraph 16(b), that he tried to collect the girls:
My father and [X] attended. My father left the car and knocked on the door. No one was home.
The Police record then continues:
His father got out of the vehicle and walked to the front door of the witnesses’ house. The witnesses did not answer the door. The father’s father has knocked again, and, again, the witnesses did not answer the door. The father’s father has then walked back to the vehicle and both witnesses have informed their daughter and, in turn, she has called the police. Police arrived a short time later and spoke to both witnesses who informed that their daughter was not at the location and has not been at the location for the weekend. The witnesses have informed police that they have footage.
Police viewed the footage and recorded “In no way does it show the father’s father being aggressive”. It is the mother’s allegation, per her affidavit, that the paternal grandfather was banging loudly on the door and yelling out, causing great distress to the children. However, the Police record:
The witnesses stated they did not answer the door because they did not want to talk to him. The witnesses then informed police that they did not want their address as the address the children be picked up at. The witnesses also informed police that their daughter is purposely taking the children away so the father, who is the biological father, does not know where they are.
It is impossible to reconcile the content of that report with the mother’s evidence, not only as to when she moved but, more importantly, evidence as to the children’s suggested behaviour on those occasions. They could not, of course, have behaved in any way if they were not present.
Senior Counsel for the mother submits that the only evidence from the COPS event entries which places the mother in the Town N area is the report referred to above of 9 August 2017, and that all other reports to police were made in the Town O/Town E area. Indeed, that is so. I accept that it is so.
However, that circumstance is reconcilable with the proposition that the mother was permanently or substantially, certainly including the weekends, living in the Town N area at that time.
It is the mother’s evidence that she has now returned to live with her parents in Town E having abandoned the premises in the Town N area. It would appear possible that the lease has been taken over by Mr G. He certainly gives evidence that he is now back living in that area but had, whilst the mother was living in that area, left the area to live with the maternal grandparents, notwithstanding he was previously living in Town N.
Again, I do not seek to engage in that controversy to pursue the issue of whether a relationship was or has ever existed. But it is the mother’s evidence that, now having returned to live with her parents – assuming, for one moment, that her evidence is accepted – that the children continue to travel to the Town N area for school, 90 minutes each way, transported by their mother each day. Accordingly, it is far from extraordinary that if the mother was living in the Town N area that she would not return to the Town O/Town E area from time to time. Indeed, it is her evidence that even when living in Town N she did so, regularly, to visit her parents and attend to other arrangements.
The children continued their enrolment at their schools in the Town E area even during the period from July till December 2017, and it is equally probable that the mother, living in the Town N area for some or all of the time continued to transport the children to school, a distance of 90 minutes, as she does now.
I am satisfied that the mother had substantially or completely relocated herself and the children to the Town N area prior to the interim hearing on 30 August 2017. No mention, of course, is made in the mother’s material that it is so. She would no doubt resist such a finding, indicating that there is no mention because she had not moved. She had simply entered a lease and for five to six months paid rent on premises that she did not live in, although, clearly, she was there in August, and it would appear, from the COPS event entry discussed in detail above, was there on weekends at the very least.
It is unclear when the father’s application, filed on 7 June 2017, was served, but the lease was entered into some few weeks after filing. It is probable, although again no finding need be made, that the mother, having been served, determined to move. Whether that is so or not, need not trouble me any great deal. I am satisfied, and as indicated find, that the mother had substantially, if not permanently, relocated before the first return date of these proceedings.
Even the mother’s evidence regarding her obtaining accommodation in the Town N area is internally inconsistent. During her oral evidence the mother indicated that she had made more than 20 applications for housing in the Town E area. Mr G indicated 27. That is set against paragraph 78 of the mother’s affidavit wherein she indicates accommodation was sourced for her through a supported accommodation and homelessness service. It may be that there was a role of that service in finding the accommodation, but it was private rental that the mother still had to apply for separately.
The mother’s evidence on the issue is not internally consistent at any point. It is certainly not consistent with the documents that are tendered, noting that a number of the police records are, in fact, tendered in the mother’s case. I find with respect to the issue of relocation of the children to the Town N area, that the mother has been untruthful. That impacts upon significant elements of her evidence at the interim hearing, and certainly at this hearing. Her evidence simply cannot be accepted on that issue.
The mother now asserts, as indicated, that she is living with her parents and transporting the children each day. I cannot be satisfied whether that is so or not, but, again, need not be too troubled, as the orders I propose to make will accept that the children are in that area, and if they are not, it is the mother who will be inconvenienced by travel, although regrettably also the children.
There is, however, a real flow-on from that aspect of the evidence to the more important evidence as to the mother’s compliance with orders and the children’s reactions to their father.
Compliance with orders in support of the girls’ relationship with their father
As indicated, orders were made on 30 August 2017 that provided for these children to spend time with their father each alternate Sunday. As indicated, the mother appealed, as to which no criticism is raised. The appeal was discontinued and the matter was listed for an expedited hearing. Sadly, that did not eventuate, although the two events are entirely unconnected.
In her affidavit the mother gives detailed evidence of her suggested support of the children in pursuing a relationship with their father and of her compliance with orders. The mother was clear, during cross-examination, that she stridently desires a relationship between these girls and their father, notwithstanding that the evidence that I will now discuss might suggest that this is somewhat disingenuous, certainly to the extent that there has been no action or appropriate action taken that would have moved towards achieving that end if that end is, in fact, desired.
At paragraphs 167 to 179 of the mother’s affidavit, there is detailed evidence of the children’s presence and preparation for intended visits with their father on the occasions discussed in the COPS event entry above. The difficulty, of course, is that the COPS event entry, which involved the mother as the person making the report to the police, and has involved her parents, the occupants of the premises at which changeover was to occur, and at which the Court is asked by the mother to believe the children were present, disavows that it was so.
The mother suggests that immediately upon concluding at Court on 30 August, that she had gone home, distressed and crying, and spoken to her mother and had spoken to the children. The mother suggests that she indicated to the children:
“The judge has put orders in place. There will be phone calls every Tuesday and Thursday. You’ll have to see your dad every Sunday, starting from Father’s day.” [Y] became very upset, got up from her chair, hit the table with her hands and said word to the effect, “Get fucked. I will not go. You can’t make me. If I have to go, I will kill myself.” She then went into her bedroom.
The mother says that she then became upset, although she conceded in cross-examination that she was already upset, and in all probability crying, during her conversation with the girls. It is suggested that [Z] sat quietly at the table and appeared to be “stunned”. Whether she was stunned by what her mother had said or by [Y]’s behaviour, is unclear.
The mother then indicates that on the first Sunday that the children were to spend time with their father, 3 September (see paragraph 172) that a conversation occurred between her and the children. Certainly, the mother is not specific as to where she and the children were at the time of that conversation. It could be they were elsewhere than the maternal grandparents’ home. However, paragraph 173 would suggest and the mother’s evidence infers, at the very least, they were at the grandparent’s home or that they went to that home after the conversation. As the mother then suggests, at paragraph 173, the outdoor security cameras to her parents’ home were switched on so that they, the mother and the children, could see when the father arrived. There was, of course, an order that the father was to remain at his vehicle.
The mother suggested that when she saw the father’s car parked outside, that the children said certain things to her. However, I accept, as the COPS event entry makes clear, that the mother and children were simply not present. Accordingly, the children could not have said the things to the mother that they did, nor could the mother have observed the father outside. I accept the record, consistent with that opined by the New South Wales Law Reform Commission in their 1973 report,[1] as a business record maintained by a competent investigative agency for a serious purpose and, hence, as more probably correct than not, until demonstrated to the contrary.
[1] NSWLRC 17 at paragraph 48
Certainly, the three witnesses, if they might be collectively referred to, are the mother and her parents. The mother does not suggest that her parents are untruthful in that related to Police. They are not called. The COPS event entry, however, suggests that they might be less than accurate in what they describe, they having reported certain behaviour of the paternal grandfather, which the police, having viewed the footage (and that footage is not before the Court, but the police describe their reaction to it) as in no way showing the behaviour that was suggested, that is aggression.
The mother’s knowledge of that allegation, commencing at paragraph 175 of her affidavit, has, I am satisfied, come from her parents telling her certain things, rather than her being present. It is a significant concern if the mother was not present, that she gives such detailed evidence as to how the children behaved.
The mother suggests (paragraph 171 of her affidavit) that following [Y] being advised that the visits were to occur, having been ordered by the Court, that the medication that she was already taking in relation to anxiety, was doubled. That is simply not so. The medical records that are tendered and contained within the exhibits makes clear that the medication was never increased. It changed but the new medication was a similar dosage.
Per exhibit A4, the mother spoke with [Y]’s counsellor on 31 August 2017, the day after the orders were made. The mother was very clear, based on what she is recorded as saying to the counsellor, that she would not hand over the children. The mother told the school that she would not be complying with the order. Exhibit ICL2 makes very clear that the mother was not there to hand over the children and nor were the children.
There is also the issue that neither of the mother’s parents are called. There is a Jones v Dunkel (1959) 101 CLR 298 inference available therefrom.
I am conscious that the mother did, in her cross-examination, provide explanation for why she has not obtained an affidavit from her father, who looms large in both parenting and property issues, perhaps more so in property. The mother suggested he was 72 years old and she did not wish to inflict that upon him. She added that her mother was very sick, and her father will not leave her side. Of course, the mother could have obtained an affidavit from her father. Leave could have been sought for him to attend for cross-examination, if required, (and I have no doubt that he would have been required), by telephone or video link.
The other difficulty is Mr G’s evidence. He suggests that it is the grandfather, not the grandmother, who is sick. The fact he is 72 years old causes me no concern at all. That does not infer some degree of incapacity or incompetence. It merely indicates he is a little older than some.
In the absence of evidence from the grandparents or either of them, there is further difficulty accepting the mother’s evidence that she or the children were present when her parents have, in their statement to police, been very clear that she was not, and when the mother is suggested to have called police from the Town N area.
The mother gave no evidence-in-chief as to why she had not called either of her parents to give evidence. I am not satisfied that what she has indicated during her cross-examination could obviate against the Court having a real concern, even if not to the extent of drawing an inference fatal to acceptance of the mother’s evidence, as to why her father has not been called on any of the issues to which he can directly speak. The inference ultimately is not necessary with respect to this issue, as the balance of evidence is sufficient to support findings.
What is reported by the grandparents, through the vehicle of the COPS event entry, is consistent with the father’s evidence. If the mother was not present, that gives rise to a very significant concern that she has manufactured a narrative regarding what has occurred, including fabrication of the words of the children and their reactions. That is problematic as, in many respects, this case turns, particularly with respect to [Y], upon the child’s complete rejection of the father, being the term used by Dr F, and aptly so.
It also causes real doubt about the mother’s support of the relationship, although that concern already arises from the reports of the children. They were not told by the mother that they were seeing their father, other than in the terms described above, in effect “The Court has said you must”. What is reported by the mother, (paragraph 169 of her affidavit), is that she asked the children if they wanted to see their father. At paragraph 168 she described, “You’ll have to see your father.” Not that she wishes them to, not that she has even paid lip service to that discussed by Nygh and Fogarty JJ in Stevenson & Hughes, in supporting the children’s relationship and in compliance with an order.
At paragraph 175 of the mother’s affidavit, regarding the events of 10 September 2017, from the mother’s perspective, there is just a complete irreconcilable difference between the mother’s evidence and that recorded in the COPS event entry. There is clearly CCTV footage available of that occasion. Other than the police having viewed it and summarised it, that footage is not produced.
Similarly, the mother’s support of the children’s communication with the father by telephone, is problematic. At paragraph 182, the mother describes:
I have observed that the children are generally reluctant to speak with Mr Salde via telephone. Following the making of the interim orders, I provided [Y] and [Z] with their own mobile telephone for the purpose of communicating with Mr Salde.
It should be observed that young [X] had previously been provided with a mobile phone, paid for by his maternal grandparents, but that payment ceased, thus that mode and method of communication ceased to be an available avenue for [X] to communicate with his mother and sisters, let alone his maternal family. The paragraph continues:
When Mr Salde called, I typically accepted the call on the children’s behalf, [i.e. the phone was answered]. I put the phone on the table in their room and then left the room. I have not heard the children talking during any of the calls.
On a Final Basis
g)Each parent shall facilitate any request made by [Y] and/or [Z] to communicate with their father Mr Salde or their brother [X] by telephone, email or other means.[14]
h)The father shall ensure that any contact as may occur between [Y] and/or [Z] and their brother Mr C (now an adult and neither party to or the subject of these proceedings) is supervised by him and that [Y] and/or [Z] are not left alone with Mr C.[15]
i)That until … 2028 (corresponding with [Z]’s 18th birthday) each parent shall:
i)Provide to the other parent, not less than 28 days written notice (by email) of their intention to change their residential address and including advice of the address to which they shall be moving;
ii)Notify the other parent forthwith and contemporaneous with the event in the case of either [Y] or [Z] experiencing significant injury or illness or being hospitalised and including sufficient detail and authority to enable each parent to speak with and be provide information by any treating doctor;
iii)Do all things, sign all documents and give all consents and authorities necessary to enable each parent to be recorded with any school attended by [Y] and/or [Z] as a parent and so as to enable each parent to obtain directly from the school any reports, information, photos or other materials they may desire;
iv)Refrain from abusing, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of [Y] and/or [Z] and each shall do all within their power to ensure no other person does so;
v)Refrain from discussing these proceedings or the content of any document filed or tendered in these proceedings with or in the presence or hearing of [Y] and/or [Z] and each shall do all within their power to ensure no other person, save the therapist engaged pursuant to these orders, does so;[16]
vi)Refrain from communicating about the children or these proceedings on any social media platform.
[14] This order, as framed in the ICL’s minute was opposed by the mother. The father proposed specific times and dates for communication. The order as made requires the parents to assist the children with communication should they express a desire for it and is far from onerous. No specific obligation upon either parent is created.
[15] The father opposed this order. The mother sought a prohibition on contact. The order as framed is unlikely to have any real operation whilst soever time arrangements remain supervised (and time arrangements would only progress beyond supervision or extend to include [Y] with the consent of both parents). The order is expressed with respect to both children so as to apply to any time arrangement that might be agreed in the future.
[16] The parties provided their consent to these restraints, however, the order has been amended to ensure that the therapist engaged by the family is not the subject of restraint or fetter.
The orders proposed by the mother and Independent Children’s Lawyer had suggested that the Independent Children's Lawyer would nominate a supervisor. There is great benefit to that as it would allow far greater flexibility. However, both parties are dependent upon Centrelink and, unless each is prepared to borrow, as clearly they can, or until such time as they release capital through sale of the home, they would be unable to fund a private contact service. That would simply delay the certain reintroduction of time.
Further, it would have the disadvantage that if either suggested that they could not afford it, it simply would not occur, thus, frustrating the intention that time start as soon as possible. Accordingly, that centre has been chosen as it will enable cheap and, in all probability, subsidised service, $5 or so each, to facilitate visits reasonably promptly within the constraints of demand upon that service. Orders will be made to facilitate the parties contacting the service within 72 hours so that it can commence as soon as possible.
Similarly, I propose to make orders, as sought by the Independent Children's Lawyer, regarding engagement with a family therapist to be nominated by the ICL.
The only dispute between the parties in relation to that order was whether the therapist would be provided with Dr F’s report. Without intending any criticism of Dr F, (I make clear that I make none) I propose that, instead of the report, these reasons will be provided. That is a burden I would prefer to not take on in having to settle the reasons but preferable as I accept, as was put by Senior Counsel for the mother, that Ms Salde might perceive some degree of prejudice arising from portions of the report.
It is no less than the prejudice which might be perceived from the findings which have been made by this Court. It was made clear to the parties, before submissions commenced, that if they were in a position to agree to a set of orders that engage them in therapy and move them forwards, that findings would not need to be made. Regrettably, findings are now necessary as the parties were unable to agree. Indeed, they could not agree as to the parent with whom the children would live and that has been the subject of judicial determination.
On a final basis, I will make a number of the orders proposed by the Independent Children's Lawyer and consented to by one or both of the parties, whether in the form proposed or with some subtle amendment. That will include orders that each party facilitate any request that [Y] and/or [Z] make to speak with their father or their brother. Such an order cannot be made with respect to [X]. Although I make clear, Mr Salde should assist [X] in every way possible to contact his mother and maternal family members and sisters. It is simply that as he will no longer be a child, hence, he is absent the Court’s jurisdiction. Parenting order cannot be made to compel a parent to do something in relation to an adult.
The father is to ensure that any contact that occurs between either of the girls and his eldest son Mr C occurs in his supervision. Certainly, until the matter is finalised, time would be supervised in any event and thus the restraint is somewhat superfluous.
I make orders that will last until [Z]’s 18th birthday that neither parent change their place of residence without giving the other notice before the event, including details of the address to which they will be moving, that each parent notify the other contemporaneous with the event in the case of significant illness, injury or hospitalisation experienced by either of the girls, that each parent sign all documents necessary to ensure that each of the parents is recorded as a parent with any school the girls attend, so that each parent can then obtain information from the school, that the parents refrain from abusing, belittling, rebuking or denigrating the other or permitting any other person to do so, from discussing the proceedings or the contents of any document filed or tendered in the proceedings and not permitting any other person, save the therapist, to do so and to refrain from communicating about the children on social media platforms.
I have expressed each of those restraints which the parties would appear to agree to, again, subject to specific issues as to wording, to last until [Z]’s 18th birthday as I am conscious that the National Working Group on Family Violence is in the process of contemplating, and may well enact, provisions that will require orders of that nature to be recorded as nationally enforceable domestic violence orders. It must thus have an end date. One would hope it would not come to pass. It is difficult to imagine a parent being arrested and charged with a criminal offence for giving less than 28 days’ notice of their change of residence, for example.
That then leaves the property issue to be determined. Before doing so, I should also make clear that I incorporate, with some amendment, the chronology of events provided by the Independent Children's Lawyer regarding the parenting aspect of the proceedings.
… 1964: The applicant father is born (now aged 53).
… 1981: The respondent mother is born (now aged 36).
1992: The father is involved in a serious motor vehicle accident.
1992-1995: The father spends time in hospital and rehabilitation. The father obtains chronic pain as a result of the accident.
17/05/2001: The mother lives in the granny flat at the back of the maternal grandparent’s house. [X] is given the mother’s family name and he is taught to refer to the mother and his sister and the paternal grandparents as his parents.
2002: The year, the father alleges the parties commence co-habitation. The father alleges that it took the parties six months to correct [X] from referring to the maternal grandparents as his parents.
2003: The father has a fall out with the maternal grandparents over the issue of who [X] should refer to as his parents.
Mid 2003: ADVO is put in place to protect the father’s ex-wife and child from previous relationship.
2003-2004: The father does not seek to the maternal grandparents for 18 months.
Early 2004: The year, the mother alleges the parties commence co-habitation. The mother ceases her employment as a customer service officer in Town B and becomes full time homemaker and parent.
2005-2013: Mr C moves into the home for a significant period between 2005 and 2013 and again for a period in 2015.
… 2006: Parties marry.
… 2006: The child [Y] is born.
… 2010: The child [Z] is born.
2015: Mother starts spending more time away from home to local clubs prior to separation and he is left to care for the children.
2016: The father alleges [Y] refuses to go to school unless he takes her. The father also alleges [Y] becomes agitated when she is separated from him.
2016: [Y] begins engaging in self-harming behaviour, the mother takes her to the GP and a counsellor.
November/December 2017: Mr G and Ms Salde meet, although Mr G says he was good friends with her father prior to meeting through a mutual friend.
February/March 2017: The mother alleges the father is fixated with the idea that she is having an affair and often initiates argument with her. The children are often in tears during these confrontations.
03/03/2017: The father feels agitated, distressed and hurt about the mother having a relationship with Mr G. The father tries to talk to the mother about her affair, but the mother refuses.
06/03/2017: The father raises the issue of an affair with the mother and an argument breaks out. The mother alleges the father mutters to himself and paces up and down the hallway outside the children’s bedrooms. The mother stays in [Y]’s room because she appears terrified. The father tells the mother to get out on numerous occasions. The mother refuses and the father then becomes agitated and raises his voice. The father leaves the home in his car but then returns and continues his behaviour.
07/03/2017: Parties separate. The mother alleges that the father threatens to kill her and Mr G and himself if he finds evidence that she is having an affair with Mr G. The mother also alleges that the father’s eyes are widened, and his pupils are dilated. The mother leaves home with [Y] and [Z] in the morning and moves to live with the maternal grandparents. The mother contacts the police. The mother returns to the matrimonial home with the maternal grandfather and finds [X] outside the house because he cannot get in. The mother tries to open the door with her key but fails. The mother alleges that the windows are boarded with timber, the back door is dead bolted with two locks and a latch and the sliding door is also blocked by timber boards. The mother asks [X] to come with her to the maternal grandparent’s house to talk. [X] then goes to the maternal grandparent’s home with the mother and says to her that he wants to stay at his home. The maternal grandfather then drives [X] back to the father’s house. The mother returns in the evening with the police to collect her belongings. The father asks the mother when he can see the children and talk about things. Police accompany the mother to the matrimonial home to allow her to obtain some personal belongings. After this event the police applied for and obtained an ADVO to protect the mother [Y], and [Z] on 7 March 2017. The father is then advised by the police to give the mother some time. Mr G alleges he notices the mother becoming concerned about going into public, and that if she did she was paranoid.
23/03/2017: The father engages in Family Relationship Centre to obtain a s60I certificate. The mother refuses to engage.
20/03/2017: The father receives threatening messages from Mr G after seeing the mother on the street. The father reports the incident to police.
28/03/2017: The mother had tickets for herself and [X] to watch a football match. However she was unable to accompany him and the father did so. The father and the mother spoke cordially for approximately 10 minutes that night with the mother ending the call by saying “it’s all very emotional, send me a letter or an email.” When the father and [X] arrived home it was clear that someone had been inside, many expensive and sentimental items had been taken, including photo albums and wedding rings. The father alleges the football match may have been a ploy for the mother to get inside the house.
24/03/2017: The father instructs his solicitor to make inquiries about when he can spend time with [Y] and [Z].
19/04/2017: The mother reports the father’s behaviour to the police and the father is charged with breaching the interim ADVO. The father is fined $300 and is placed on good behaviour bond for 12 months. [X] discloses to the father that the maternal grandfather pushed the mother to make the report to the police.
27/04/2017: S 60I certificate is issued by Family relationship Centre.
28/04/2017: The father’s solicitor receives response from the mother’s solicitor. The mother refuses to allow the father to speak or spend time with the children.
08/05/2017: Final ADVO is granted by consent against the father for a period of 12 months ([X] is removed from the Order).
20/05/2017: The last time [X] spends with the mother.
2017: The father alleges that he has spent no time with [Y] and [Z] post separation. Father alleges that [X] accused the maternal grandfather making dreadful statements about the father while all the children are present.
Early June 2017: The last time the mother hears from [X]. [X] has changed his mobile number and the mother cannot contact him since.
07/06/2017: The father files Initiating Application
08/06/2017: Father completes the Up to Parents Course
13/07/2017: Father completes Anglicare’s Post Separation Cooperative Parenting Course; Our Children Workshops 1 and 2.
30/08/2017: First return date, judgment delivered, and orders made. Orders provided for the girls to live with their mother, and for [X] to live with the father. [X] is able to have contact with the mother whenever he wishes. Both parents must as soon as practicable enrol the children in Family Therapy at Anglicare Town B to re-establish relationships. The father shall spend time with the children from 10am-6pm on each alternate Sunday, and for overnight periods during school holidays. The mother returns home and becomes very upset about the new Orders in the kitchen. The children hear the mother crying and walk into the kitchen and are informed that they have to talk to the father every Thursday and have contact with the father every Sunday. [Y] then becomes very upset and threatens to commit suicide if she has to have contact with the father.
30/08/2017: The mother alleges that [Y] reacted to the news of the orders by saying, “Ge fucked! I will not go. You can’t make me. If I have to go, I will kill myself.” Whereas [Z] sat quietly and appeared stunned. In the week after the Orders are made the mother alleges that [Z] isolates herself, and has tended to soil herself around the time of phone contact, or after he comes to the house.
28/09/2017: The mother files Application in a Case.
23/10/2017: First return date for the mother’s application, Orders made for single expert report, ICL appointment and Final hearing filing directions.
Property Determination
In dealing with the issue of property, I must commence by observing that there are significant number of basic agreed facts in these proceedings.
The husband purchased the matrimonial home at Street D, Town E well prior to these parties meeting, let alone commencing their relationship. Whether it is well prior to or during the relationship has little relevance, save that it was introduced to the relationship and acknowledged and conceded by Senior Counsel for the mother as a significant factor as regards contribution. It was purchased from the proceeds of a personal injuries claim and was initially unencumbered.
During the relationship the parties borrowed $79,000 or thereabouts. Those moneys were, I am satisfied, used to purchase a car and to fund renovations to the home. The wife indicates, at paragraph 32 of her affidavit, that a sum of $24,259.77 was paid to NAB. The wife is unclear what that was for but opines that it may well have been to discharge a prior debt.
The form of the evidence does not allow any finding to be made that it is so. The wife suggests that she has made enquiries of the bank and is so advised. No objection is taken to the paragraph although if an objection had been taken it may well have been struck out. It does not assist in determining authoritatively whether any such payment was made or the purpose of the payment. It was open to the wife at any time, if she had made enquiry and could be told by the bank certain information, to obtain the document from the bank that would demonstrate clearly that it was so. The mortgage was in joint names. That is the basis upon which the wife was able to obtain information.
The husband denies that it is so. Accordingly, as indicated, no finding is made that it did occur. I accept that the funds that were borrowed most assuredly were applied towards the purchase of a vehicle for approximately $40,000 and some or all of the remaining funds applied to renovations. Each of the parties says that their family helped in the renovations, either through performing work, providing funds or both. Neither called any person to support their proposition. Each denied the other’s proposition.
I accept that the parties themselves did not undertake any substantial work. Certainly, without intending any criticism of or discourtesy to Mr Salde, he was in no position to do so. Ms Salde does not suggest she did. Ms Salde does suggest that her father not only did work, (Mr Salde calls into question the quality and completeness of the work), but suggests that he paid funds of approximately $50,000, or so she is advised by her father, towards purchasing materials or payment of tradesmen. Not a single document is produced. Her father is not called and as discussed above, I need not pursue the inference which I am satisfied is available per Jones & Dunkel, as it is the absence of other available corroborative material that is problematic.
Ms Salde suggests that the funds were paid predominantly or solely in cash. Again, there are simple sources from which corroborative evidence could have been called. It is denied by Mr Salde. I am not satisfied that I could safely conclude that it has occurred at all or certainly not in that quantum.
I do accept that some work has been performed by Ms Salde’s father. Whilst it is suggested by Mr Salde that the work was not complete, there is no specificity in the denial.
Prior to and during the relationship Mr Salde and, following their cohabitation and marriage the parties jointly, conducted a business. That was conducted for some years (it is unclear how many). It generated a modest income. It is not clear whether the parties were, at the same time, receiving Centrelink benefits. I do not raise that to suggest wrongdoing. Merely to observe that, if they were, the income was sufficiently modest so as to not interfere with receipt.
The wife was, for an unspecified period, the husband’s carer for Centrelink purposes. Both parents were home on a fairly full-time basis. The wife, I accept, performed the majority of homemaker and parent duties, largely explicable by reference to the husband’s pre-existing medical conditions, although I accept the husband was an active, hands-on parent, as already found.
The husband’s son, Mr C, was in the home for a significant period, possibly as long as 2004 to 2013 and again for a period in 2015. That generates a Robb & Robb (1995) FLC 92-555 contribution argument advanced by Senior Counsel for the wife. That contribution would be assessed all the higher in light of the special needs of that child and the significant behavioural difficulties that were exhibited during his tenure within the home.
Whilst it is not argued, it would also be possible for Mr Salde to argue a Robb & Robb contribution with respect to [X]. It would appear common ground that the parties were both aware that [X] was not the biological child of Mr Salde. No doubt as a consequence of the love and affection that Mr Salde holds towards [X], as he expresses, indeed, as [X] expresses in the family report, they do not care about biology. They consider themselves father and son. That argument is not mounted. It is a credit to Mr Salde that it is so.
Since separation [X] has lived with Mr Salde in the home. Mr Salde has serviced the mortgage, albeit modest, since separation. The girls have lived with their mother. That has been for times at the home of the maternal grandparents and other times the rented accommodation in the Town N area.
Each of the parties has a financial resource available to them via their family. The wife has borrowed $95,000 from her family to meet legal fees. The husband has borrowed approximately $44,000. The husband’s legal fees are comparable with the wife’s. It is simply that his solicitors are, as the phrase is often used, “doing it on spec”. They will be paid from the proceeds of sale of the home. Indeed, the sale of the home becomes inevitable to release funds to discharge the husband’s legal fees. I do not raise that to be in any way critical of the husband’s lawyers. They are entitled to be paid for the work they have performed.
I accept that the husband will not work in the future, perhaps other than in work akin to the work he has previously undertaken. That is not to be dismissive or pejorative of that work. Merely to acknowledge that it does not generate any significant income.
I accept that the wife is not presently working and that she has no significant employment skills. Again, that is not a criticism of her. She had her first child at 20. She has not been in the workforce for a significant period of time. Such skills as she acquired prior to [X]’s birth have been significantly eroded during the relationship.
Each party receives and is dependent, at present, on Centrelink. Subject to the financial resources their families represent, each will, in the foreseeable future, continue to receive Centrelink and little or no child support from the other irrespective of which child lives where.
Each parent will continue to care for, support and maintain a child. Whilst [X] will turn 18 in a few weeks’ time, the duty to maintain [X], which would arise as a consequence of biological parenting, is accepted and willingly so by Mr Salde. He will continue to support [X] and discharge that duty that he perceives and which is, for example, recognised by Kay J.[17]
[17] Bienke & Bienke-Robson [1997] FamCA 54
Those facts are all agreed or largely so, subject to the discussion of controversy contained therein. There are few facts that are in dispute.
There is no evidence of value of the home. Although Ms Salde accepts Ms Salde’s opinion or “guesstimate” for present purposes, I am satisfied that it is safe to do so in this case as both parties agree there are no other significant assets to be considered and the home will be sold and thus, provided there is a percentage division of proceeds, there would be disadvantage to either. It might have some impact on the assessment of 75(2) adjustments but it is limited, if at all.
As the High Court is clear in Stanford v Stanford (2012) 247 CLR 108, I must commence by satisfying myself that it is appropriate to proceed with the case and accept jurisdiction. I am so satisfied. As was made clear by their Honours,[18] the fact that the parties have separated, have previously intermingled their lot with each other and that they now wish to disengage from each other is and should be, in a case such as this, a sufficient basis.
[18] Stanford v Stanford (2012) 247 CLR 108, paragraph 42
I must then have regard to the present legal and equitable interest of these parties in property. The balance sheet between the parties is remarkably simple. There is the home at Town E with a value opined of $490,000. There is a car retained by the husband, being that which was purchased from the moneys drawn against the property. The husband submits the car is worth $8,800, the wife $10,800. There is no suggestion in any of the evidence as to where either figure has come from. I propose to accept Mr Salde’s figure as an admission against interests if nothing else.
Counsel of the father and Senior Counsel for the mother consent to the omission of all other items contained within the balance sheet R16, being Ms Salde’s motor vehicle, purchased since separation and no doubt with assistance from family, and the party’s respective savings. They are, at the very best, extremely modest. These parties live on a shoe string. There are some items of furniture and contents. There is agreement for their exclusion also.
The only liability which requires consideration is the mortgage encumbering the home. That is an amount of $42,632. Ms Salde, in her evidence, concedes that the mortgage is being serviced by Mr Salde but opines that there have been redraws of several hundreds of dollars at a time against it. There is no other evidence. I do not disbelieve Ms Salde but I am not satisfied that the evidence that is led would warrant any further consideration, even if accepted as fact.
There are a number of debts identified in the balance sheet. The parties are, again, agreeable to those being omitted. There are two credit cards in the name of Mr Salde. There is nothing in the evidence which connects with or explains their existence as to whether they are debts which were accrued during the relationship, post-separation or otherwise. I am satisfied, accordingly, that they can and should be omitted.
Similarly, each alleges loans from family to meet legal fees, as already disclosed above. I am not satisfied that they can or should be included. Even if included and if paid legal fees were then considered they would have no impact. Accordingly, I am left with a pool of property with a very straightforward value, $498,800, being the home and car. When the mortgage is deducted that produces a net total of $456,168.
Neither party has any superannuation nor financial resources save the ability to borrow funds, it seems quite readily, from their family.
With respect to contribution, Counsel for the husband submits that the wife’s contribution should be assessed as 15% at its highest. Senior Counsel for the wife submits the contribution should be assessed at 30%. I accept the submission of Senior Counsel. These parties were in a relationship with each other from 2003 until 2017, a period of 14 years. It is a significant and lengthy marriage by reference to the statistical average for marriages.
The wife’s contributions are not entirely limited to homemaker and parent contributions. To the extent that one considers homemaker and parent contributions they include not only parenting of the three children (four when Mr C is considered and he was, on any view of the evidence, a challenging child to parent) but significant work in relation to the assistance of Mr Salde. She was, after all, for some period, his carer. That must acknowledge and accept that she played such a role.
It is also submitted by Senior Counsel, and I accept the submission, that the wife’s contributions included involvement in generation of income through the business, her role as carer for the husband, her non-economic contributions within the home and the work performed to renovation of the home by the wife’s family even though that work is somewhat in dispute as to its quantum, its completeness, its value or the impact that it had upon the value of the property. Indeed, there is no evidence led by either party in that regard.
The wife has made Calvary & Green (1984) 155 CLR 242 contribution through lending her name to the borrowing the parties undertook against the home, even though she was not a registered proprietor. There is the significant issue of the Robb & Robb contribution in relation to the parenting of Mr C. That clearly was distressing at times and thus a more onerous contribution (to adopt the language of Kennon & Kennon [1997] FamCA 27).
The husband has, since separation, retained all assets of the relationship and had their use and benefit albeit whilst servicing the modest mortgage encumbering the home. There is the issue about the loan which the wife suggests. But, as I have indicated, no finding could be made with respect to it.
Post-separation the wife has had the care of the two girls and the expense that this generates within her household. That is not to suggest that Mr Salde has not, at all times, been willing to defray that expense by having some care of the children himself. But I can only deal with established fact, not aspiration.
The wife has not had the use of any asset. She has, for periods of time, albeit with some assistance, had to pay rent for herself which has exceeded the mortgage serviced by the husband. The husband retained the joint savings account of the parties at separation, small as its balance was. The wife has not received, and will not likely receive in the future, child support. Nor has the husband received child support for [X].
On the above bases, I am satisfied that there is overwhelming support for acceptance of the submission put by Senior Counsel for the wife that her contribution should be assessed at 30%.
In relation to section 75(2) adjustments, it is submitted by Counsel for the husband that an adjustment of 5% should be made. It is submitted by Senior Counsel for the mother that an adjustment of 10% should be made. I propose to make an adjustment of 7.5%. That is not purely to split the difference between the parties. I am satisfied that in all the circumstances that is the appropriate level of adjustment.
Five per cent is certainly the minimum adjustment that would be made. A number of the section 75(2) factors favour the wife. That is not to suggest, however, that they all fall in the wife’s favour. The husband also has section 75(2) factors that would operate and whilst they would not completely obviate against an adjustment in the wife’s favour they would very much temper them.
In that regard, Mr Salde is somewhat older than Ms Salde. That is not a criticism in any fashion. It is merely the reality, he is 17 years her senior. His working life is, without intending to stress or disrespect Mr Salde, over. His health precludes it more so than his age.
Ms Salde, as already observed, does not have any readily applicable employment skills that she could use to generate income at this point in time. It is not her fault she has been absent the work force for many years. She has the capacity to retrain, however, and may, one would hope, receive some assistance from Centrelink or other government agency in doing so. It would be made more difficult, however, by having the care of two children at this point.
Both parties have similar income. Neither has any significantly greater financial resources. They both have family who can aid them but that is a matter for those family members to determine. They can terminate their largess whenever they wish, perhaps more likely in the case of Mr Salde whose family members providing such assistance being not his parents.
At this point in time Ms Salde has the care of two children under the age of 18 years who will continue, pursuant to the interim orders made today at least, in her care. That is a factor in her favour.
Each party has commitments to enable them support themselves and others. In the case of Ms Salde, the two girls. In the case of Mr Salde, [X]. That is a commitment that will continue, voluntarily assumed by Mr Salde, even when [X] turns 18. Neither is responsible for supporting any other person.
The standard of living that each will maintain is frugal at best. It will reduce for Mr Salde upon sale of the home. It is, as he has pleaded via his Counsel’s case outline, unlikely that he will be able to then purchase a property in his name outright and he will be dependent upon the rental market, which will again substantially increase his expense base. That is a factor in his favour.
Neither is really in a position to provide financial support by way of child support or maintenance. I do not criticise either parent, they cannot afford to provide, but I must acknowledge the reality that the parent who has the care of the children will assume all expense. Again, Mr Salde is more than content to assume care of the children to provide support in that fashion.
Creditors will not be effected. There are no issues with respect to bankruptcy.
Neither party could, on the basis of the evidence and the findings made, be said to cohabit with another person in the sense relevant for the purpose of subsection (m).
Ms Salde wishes to continue her role as homemaker and parent but also evinces a desire to enter the workforce. She will have the best of each of those protections by an adjustment in her favour.
It is for those reasons that I am satisfied that a figure between that which each of Counsel or Senior Counsel opines is appropriate, namely 7.5%.
If that percentage is applied to the total net pool of $456,168.00 it is simple enough. However, the cash payment that will arise for Ms Salde will come only from the home and its sale.
By reference to its present equity, for the wife to receive 37.5% of the total asset pool, albeit if it comprises only the home and car, then she would need to receive 37.7% of the proceeds of sale of the home.
That arises as the husband will retain the car, being 1.9% of the total net pool. Payment of 37.5% for the total pool as a function of the equity in the home equates to the slightly increased percentage.
I am satisfied that I can finalise the property proceedings now because, as already indicated, the section 75(2) adjustments are fairly balanced. Even if there is a change with the children’s arrangements in the future it is unlikely that it would have any significant impact one way or another upon the adjustments that would be made.
It is difficult to foresee at this point, but not impossible, that there would be a change of such magnitude, (i.e., the girls passing to live with their father), so as to cause any significant re-evaluation. However, even if that were to occur, and the evidence is yet to be led that would either support or contra-indicate such a position, the benefit of the matter being finalised now is that the parties will have their funds. Thus, they will each have the benefit of those funds in their hands to do with as they wish, desire or need to. That would obviate against even the modest adjustment that could be argued if there was substantial change in the future.
For those reasons, orders will be made which require the sale of the home. I will include expansive sale provision separate from the proposals of either party.
Mr Salde’s primary position was that he would retain the home and hence he has not included any proposal for sale arrangements. Ms Salde has included detailed provisions including auction. I am not satisfied that is necessary at this time. I have included more modest proposals which will address any dispute with respect to the listing agent, the sale price, the solicitor or conveyancer to act, and any dispute as to offers that might be accepted, particularly noting Ms Salde’s evidence that, in the past, she has caused the property to be marketed but Mr Salde has then refused to sell the property when a buyer was found.
Orders will also be made, of the Court’s own motion, that until sale of the property Mr Salde will maintain it, keep it insured, pay the council and water rates and principal and interest payments on the mortgage. Along with the sale there will be a discharge of the mortgage, adjustment and payment of council and water rates, payment of sale costs, payment to Ms Salde of 37.7% of the net equity then remaining, together orders requiring that she then also make payment of $5,000 to a fund to meet the therapeutic intervention costs and $1,650 with respect to the Independent Children's Lawyer’s costs.
Ms Salde would also receive, in addition to the above sums, payment from Mr Salde of an amount equal to one half of Dr F’s costs, those costs not being presently known. Mr Salde would then receive the balance, subject to the same requirement that he cause a sum to be deposited to trust to meet therapeutic costs and pay the Independent Children's Lawyer’s cost or modest contribution thereto.
Those funds provided for therapy would then be held in trust and used solely to pay for the therapist. In the event that any funds remain they would be divided equally between the parties. It was submitted on behalf of Ms Salde that the payment for the funds into trust to meet therapeutic costs should come “off the top”, as it were, before any distribution to either party. That is resisted by Mr Salde. It would, on the basis of the above division, result in Mr Salde paying a slightly greater amount than Ms Salde.
I am not satisfied that either party should be in a position of contributing more or less than the other. Particularly not so in light of the findings made in the parenting matter. Each of these parties should contribute equally, both financially, practically and emotionally to fixing the problems within their family.
The Independent Children's Lawyer has sought an order that each party contribute $1,650 to their costs. When one considers that the parties have each expended a sum approaching $100,000 in prosecution of this litigation to date, that is an extremely modest sum representing less than 2% of their individual expenditure.
Each party, perhaps appropriately, and advisedly so (so as to avoid any application for greater quantum of payment), consents to the order, thus it is included by consent.
I will also make an order pursuant to section 78 of the Family Law Act 1975 that each party retain and have sole title, as against the other, to all property in their respective possession. That will be included in the usual terms.
I will include a section 106A order so that a Registrar can sign documents, if that is necessary and an order removing all financial issues from the list of cases awaiting hearing.
The balance of the proceedings, relating purely to parenting, will be adjourned for further mention and directions to 9.30 am on 20 September 2019.
It will be noted that on that day if all parenting issues are not resolved the directions will be made to advance the proceedings for further and final hearing dates as soon as practicable in all probability January 2020.
The usual order pursuant to section 65DA will also be included advising the parties of their duties and obligations with respect to the orders.
However, for those reasons and omitting the footnoting contained within the judgment, orders are made as follows.
I certify that the preceding four hundred and forty-six (446) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 12 June 2019
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Family Law
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Civil Procedure
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