SALLER & DANELL
[2017] FamCA 161
•16 March 2017
FAMILY COURT OF AUSTRALIA
| SALLER & DANELL | [2017] FamCA 161 |
| FAMILY LAW – CHILDREN – where there are serious allegations of family violence – where the mother alleges that the father was violent to her – where the mother alleges that the father engages in acts of family violence and sexualised conduct towards the children – whether the father has taken inappropriate photos of the children – credibility of witnesses – whether there is unacceptable risk of harm – where there is a meaningful relationship between each parent and each child – consideration of the parenting arrangements that would be in the best interests of the children – whether the presumption of equal shared parental responsibility applies. |
FAMILY LAW – PROPERTY – DE FACTO RELATIONSHIP – consideration of the parties’ existing legal and equitable interests in property – consideration of whether each party made direct or indirect contributions towards the property pool – whether it is appropriate to make an adjustment of the parties property interests having regard to the matters as set out in s 90SF(3) of the Family Law Act 1975 (Cth) – consideration of what orders would be just and equitable.
| Child Protection (Offenders Registration) Act 2000 (NSW) s 3 Adamson & Adamson (2014) FLC 93-622 |
| APPLICANT: | Mr Saller |
| RESPONDENT: | Ms Danell |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Sydney Central Family Law |
| FILE NUMBER: | SYC | 575 | of | 2015 |
| DATE DELIVERED: | 16 March 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 23 May – 27 May; 1 June; 20 June – 22 June; 21 July; 25 July; 15 – 17 August; 29 August 2016. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Campton SC |
| SOLICITOR FOR THE APPLICANT: | Clinch Long Letherbarrow |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Gordon & Barry Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms O’Shea |
Orders
Parenting
All previous parenting orders in relation to the children, B, born … 2007, and C, born … 2010 (collectively “the children”) be discharged.
The mother have sole parental responsibility for the children.
The children live with the mother.
Until the younger child attains the age of 10 years old, the children are to spend supervised time with the father as follows:
4.1.from after school (or 3.00 pm on a non-school day) until 8.00 pm each Friday; and,
4.2.on the first, third and fourth Sunday of each month, from 10.00 am until 4.00 pm.
4.3.Such time is to be supervised by J Organisation or such other person or organisation that the parties agree to in writing; and,
4.4.Subject to Order (4.5), the cost of supervision is to be paid for by the father.
4.5.In the event of there being an additional charge in respect to the preparation of written reports of the supervised time that the children spend with the father the mother shall meet that additional cost.
Upon the younger child attaining the age of 10 years, the children are to spend unsupervised time with the father as follows:
5.1.For a period of four months;
5.1.1.On each Friday from after school (or 3.00 pm on a non-school day) until 7 pm;
5.1.2.On the first, third and fourth Saturday of each month, from 9.45 am until 4.45 pm;
5.1.3.The father is to collect the children at the conclusion of school on Fridays during school terms and return them to the F Police Station. On Fridays during school holidays, the father is to collect the children from CatholicCare City F and return them to F Police Station. All Saturday changeovers are to take place at CatholicCare City F.
5.1.4.The costs of the changeover service at CatholicCare City F are to be paid by the father.
5.2.Thereafter, for a period of 4 months:
5.2.1.On first, third and fourth weekend of each month, from after school on Friday (or 3.00 pm on a non-school day) until 4.45 pm on Saturday;
5.2.2.The father is to collect the children at the conclusion of school on Fridays during school terms, and otherwise all changeovers on non-school days are to take place at CatholicCare City F;
5.2.3.The costs of the changeover service at CatholicCare City F are to be paid by the father.
5.3.Thereafter, for a period of 4 months:
5.3.1.On each alternate weekend, from after school on Friday (or 10 am during a non-school day) until 4.45 pm on Sunday;
5.3.2.In each other week, from after school on Wednesday until before school on Thursday, except during school holiday periods;
5.3.3.The father is to collect the children from school at the commencement of his time, and return the children to school at the conclusion of his time, except on non-school days when changeovers are to occur at CatholicCare City F;
5.3.4.The costs of the changeover service at CatholicCare City F are to be paid for by the father.
5.4.Thereafter:
5.4.1.During school terms:
5.4.1.1.On each alternate weekend from after school on Friday until before school on Monday;
5.4.1.2.In each other week from after school on Wednesday until before school on Thursday;
5.4.2.During school holidays:
5.4.2.1.For one half of each NSW school holiday period, being the first half in even numbered years and the second half in odd numbered years.
5.4.3.The father is to collect the children from school at the commencement of his time, and return the children to school at the conclusion of his time, except on non-school days when changeovers are to occur at Suburb M McDonalds or such other location agreed between the parties in writing.
5.5.At such other times as agreed between the parties in writing.
By no later than 1 March 2020, each party is to contact CatholicCare City F and do all acts and things necessary, including completing all intake assessments, to enable changeover to take place at that service.
Each party be and hereby is restrained from:
7.1.Denigrating the other, or any member of the other’s family, to or in the presence or hearing of the children.
7.2.Discussing these proceedings, or any of the issues raised in these proceedings, with the children or in their presence or hearing;
7.3.Using physical discipline on either of the children;
7.4.Taking the children (or either of them) to any counsellor, psychologist or psychiatrist, other than the therapist appointed pursuant to the orders made on 16 August 2016 (“the Therapist”), unless the counsellor, psychologist or psychiatrist has been approved by the Therapist.
The father be and hereby is restrained from:
8.1.Taking photos or videos of either of the children in full or partial state of undress;
8.2.Consuming alcohol during periods when the children are in his care.
Each party be and is authorised by these Orders:
9.1.To request and receive information from the children’s school(s) in relation to their educational progress, including copies of school reports and general school newsletters;
9.2.To request and receive information from any medical practitioner providing treatment to either of the children in relation to the children’s health care.
10. Each party shall forthwith set up a dedicated email address for the purposes of communicating with each other in relation to parenting matters only, and shall forthwith advise the other party of such address.
11. In the event of any dispute in the future in relation to a major long term issue concerning either of the children, the parties shall attend upon a family dispute resolution service to attempt to resolve that issue by agreement before commencing further Court proceedings, except in circumstances of urgency.
That each party pay their share of the Independent Children’s Lawyer’s costs in the sum of $15 372.50 within 28 days of the date of these Orders.
Property
That within three (3) months of the date of these Orders, the wife is to do all acts and things and sign all documents necessary to:
13.1.discharge the mortgage to ANZ Bank registered on the Suburb YY property (dealing …6L) in respect of which the mother is sole mortgagor;
13.2.simultaneously with Order 13.1 above, transfer to the husband all her right, title and interest in the property situate at and known as Melbourne Suburb YY in the State of Victoria (“the YY property”);
13.3.pay to the husband, or as he may direct in writing, the sum of $263,569; and
13.4.do all acts and things and sign all documents necessary to transfer to the husband registration and ownership of Ford Vehicle ….
Subject to Order (17) below, simultaneous with the wife’s compliance with Order (13) above:
14.1.Within three (3) months of the date of these Orders, the husband is to vacate the L property leaving it in good order and condition.
14.2.The wife be declared the sole owner in law and equity of the property situate at and known as K Street, Suburb L in the State of New South Wales (“the L property”) and the wife is to indemnify and keep the husband indemnified in respect the ANZ Bank mortgage registered on the L property (dealing …6B).
In the event that the parties are unable to reach agreement regarding the division of household contents, including furniture, located at any of the property that they own or rent, that item or those items shall be listed for sale in a manner agreed by the parties and the proceeds divided equally.
In the event that the parties decide to sell any item or items of household content or furniture pursuant to order (15), but are unable to agree on the person or organisation to sell any such item or items, the husband shall provide the wife with a list of three appropriately qualified individuals or organisations and the wife shall select a person or organisation from that list of names.
The Alternative
In the event that the wife does not comply with Order (13) above, the parties are each to submit a proposed Minute of Order to my chambers within fourteen (14) days of the wife’s failure to comply with Order (13), setting out their proposal for:
17.1.The sale of the L property;
17.2.The division of the proceeds of sale (after payment of the costs of the sale and a payment to the husband in the sum of $210,091.40) to reflect the Court’s determination of the proceedings.
Other than as provided for in these Orders, each party shall retain free from any claim from the other party all other property, furniture, furnishings, savings, businesses, motor vehicles, superannuation entitlements and other financial resources currently in that parties name, possession or control as at the date of these Orders and each party shall also indemnify the other party in relation to any liabilities or debts payable by that party as at the date of these Orders and keep such party indemnified from any such claim.
In default of either party doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to said Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saller & Danell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 575 of 2015
| Mr Saller |
Applicant
And
| Ms Danell |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns competing applications for parenting and property orders arising from the breakdown of the parties’ de facto relationship of approximately nine and half years. The applicant Mr Saller (“the father”) seeks orders for the children of the relationship to live with him and spend time with the mother, primarily on weekends. The children are B aged eight (“the elder child”) and C aged six (“the younger child”) (collectively “the children”). The respondent Ms Danell (“the mother”) seeks orders that the children live with her, and as a result of the alleged acts of family violence that she contends occurred during the parties’ relationship and the father’s conduct in respect to the children, that any time the father spends with the children should be supervised.
In respect to property, the father submits that, as a result of his contributions and the mother’s superior earning capacity, there should be an adjustment of the parties’ property interests in his favour. The mother agrees that there should be an adjustment of the parties’ property interests but, contends that there should be an adjustment of those interests in her favour. In that respect the mother submits that she has made a more significant contribution to the property of the parties through direct contributions and non-financial contributions such that she has been the primary carer of the children for the majority of their lives. The mother further submits that any property adjustment should recognise the fact that she will have ongoing responsibilities as the primary carer of the children.
As a result of incidents, which I have found to constitute acts of family violence, and concerns regarding the father’s conduct in respect to the children, I have made orders for the children to live with the mother and spend time with the father. I have formed the view that the time should be supervised until such time as the children are more aware of appropriate body boundaries and are in a position to report any potentially abusive behaviour that impacts upon them.
I have determined that there should be an adjustment of the parties’ property interests in the mother’s favour but, in so doing I have made an allowance for the fact that the father will have the burden of paying for the supervision of the children’s time with him. I have also had regard to the fact that the mother’s future earning capacity is greater than that of the father.
Competing applications
Parenting
The Independent Children’s Lawyer (“the ICL”) did not formulate her proposed orders until the close of evidence, at which point the ICL provided the following Minute of Order to the Court (Exhibit 29):
1. That all previous parenting orders in relation to the children, [B], born … 2007, and [C], born … 2010 (“the children”) be discharged.
2. That the children live with the mother.
3. That the children spend time with the father as follows:
3.1 For a period of 4 months from the date of these Orders:
3.1.1 On each Friday from after school (or 3 pm during school holidays) until 7 pm;
3.1.2 On each Saturday from 10 am until 2 pm;
3.1.3 Such time to be supervised by [J Organisation];
3.1.4 The costs of supervision to be shared equally between the parties.
3.2 Thereafter, for a period of 4 months:
3.2.1 On each Friday from after school (or 3 pm during school holidays) until 7 pm;
3.2.2 On each Saturday from 9.45 am until 4.45 pm;
3.2.3 The father is to collect the children at the conclusion of school on Fridays during school terms and return them to the [F] Police Station. On Fridays during school holidays, the father is to collect the children from CatholicCare [City F] and return them to [F] Police Station. All Saturday changeovers are to take place at CatholicCare [City F].
3.2.4 The costs of the changeover service at CatholicCare [City F] are to be shared equally between the parties.
3.3 Thereafter, for a period of 4 months:
3.3.1 On each weekend from after school on Friday (or 3 pm during school holidays) until 4.45 pm on Saturday;
3.3.2 The father is to collect the children at the conclusion of school on Fridays during school terms, and otherwise all changeovers on non-school days are to take place at CatholicCare [City F];
3.3.3 The costs of the changeover service at CatholicCare [City F] are to be shared equally between the parties.
3.4 Thereafter, for a period of 4 months:
3.4.1 On each alternate weekend from after school on Friday (or 10 am during school holidays) until 4.45 pm on Sunday;
3.4.2 In each other week from after school on Wednesday until before school on Thursday, except during school holiday periods;
3.4.3 The father is to collect the children from school at the commencement of his time, and return the children to school at the conclusion of his time, except on non-school days when changeovers are to occur at CatholicCare [City F];
3.4.4 The costs of the changeover service at CatholicCare [City F] are to be shared equally between the parties.
3.5 Thereafter:
3.5.1 During school terms:
3.5.1.1 On each alternate weekend from after school on Friday until before school on Monday;
3.5.1.2 In each other week from after school on Wednesday until before school on Thursday;
3.5.2 During school holidays:
3.5.2.1 For one half of each NSW school holiday period, being the first half in even numbered years and the second half in odd numbered years.
3.5.3 The father is to collect the children from school at the commencement of his time, and return the children to school at the conclusion of his time, except on non-school days when changeovers are to occur at [Suburb M] McDonalds or such other location agreed between the parties in writing.
3.6 At other times as agreed between the parties in writing.
4. That within 7 days each party is to contact CatholicCare [City F] and do all acts and things necessary, including completing all intake assessments, to enable changeover to take place at that service.
5. …
6. …
7. That each party be and hereby is restrained from:
7.1 Denigrating the other, or any member of the other’s family, to or in the presence or hearing of the children.
7.2 Discussing these proceedings, or any of the issues raised on [sic] these proceedings, with the children or in their presence or hearing;
7.3 Using physical discipline on either of the children;
7.4 Taking the children (or either of them) to any counsellor, psychologist or psychiatrist, other than the therapist referred to in Orders 5 and 6, except in accordance with that therapist’s recommendation.
8. That the father be and hereby is restrained from:
8.1 Taking photos or videos of either of the children in full or partial state of undress;
8.2 Consuming alcohol during periods when the children are in his care.
9. That each party be and is authorised by these Orders:
9.1 To request and receive information from the children’s school(s) in relation to their educational progress, including copies of school reports and general school newsletters;
9.2 To request and receive information from any medical practitioner providing treatment to either of the children in relation to the children’s health care.
10. That each party shall forthwith set up a dedicated email address for the purposes of communicating with each other in relation to parenting matters only, and shall forthwith advise the other party of such address.
11. In the event of any dispute in the future in relation to a major long term issue concerning either of the children, the parties shall attend upon a family dispute resolution service to attempt to resolve that issue by agreement before commencing further Court proceedings, except in circumstances of urgency.
12. That each party pay their share of the Independent Children’s Lawyer’s costs in the sum of $15 372.50 within 28 days of the date of these Orders.
13. …
On 16 August 2016 orders were made in effect in accordance with the ICL’s proposed Orders 5 and 6. Those orders read:
1. The parties and the children participate in family therapy with a therapist nominated by the Independent Children’s Lawyer for the purposes of assisting the parties and the children to implement parenting arrangements
2. For the purposes of Order 1:
2.1 Each party shall within seven (7) days contact and make an appointment with the therapist;
2.2 Each party shall attend the initial appointment with the therapist and subsequent appointments as requested by the therapist;
2.3 Each party shall use their best endeavours to comply with all reasonable recommendations made by the therapist, including any recommendation to undertake individual therapy; and
2.4 The parties shall continue to attend appointments with the therapist until such time as the therapist recommends that family therapy cease.
On 29 August 2016 orders were also made in relation to the payment of outstanding costs owed to Dr R (the ICL’s proposed Order 13). Those orders read:
1. The Legal Aid NSW pay to Dr [R] funds currently held in the Legal Aid NSW Trust Account in the amount of $4,535.00 as part payment in respect of her the following outstanding invoices;
·00006823 dated 15 June 2016; and
·00006826 dated 26 July 2016.
2. The mother pay the balance of fees owed to Dr [R] being the sum of $6,395 within fourteen (14) days of these orders with the apportionment of the entirety of such fees to be determined by the Court in the final orders.
In a Minute of Order provided to the Court (Exhibit 23), the father proposed the following orders:
1. That subject to Order 2 hereof, the parties have equal shared parental responsibility for [B] born … 2007 and [C] born … 2010 (hereinafter referred to as “the children”).
2. That the father shall have sole parental responsibility for the children in relation to medical issues, education and religious development but shall provide the mother with an opportunity for input in relation to such decisions as follows:
a. The father is to notify the mother in writing of any decision which he is called upon to make, to provide the mother with the relevant information, and to notify the mother of the details of any involved medical educational or other professionals.
b. The mother be authorised to obtain information from the children’s school, treating medical practitioners, the children’s psychologist referred to at Order 8 hereof and to make her own appointments with any such persons to inform herself in relation to all matters relevant to such decision.
c. The mother shall provide the father with her input in relation to the relevant issue within seven (7) days of receipt of notification from the father pursuant to Order 2(a) or, in the event that the mother’s appointment with any person pursuant to Order 2(b) is not to occur until sometime thereafter, within seven (7) days of that appointment occurring.
d. The father is then permitted to make the decision in relation to the children’s medical, educational or religious development issue in collaboration with any relevant professionals.
3. That the children live with the father.
4. That the children spend time with the mother on a fortnightly basis as follows:
(a) During school term:
i. From the conclusion of school each Tuesday until the commencement of school on Wednesday; and
ii. Each alternate weekend from the conclusion of school Friday until the commencement of school on Monday (with such alternate weekends to occur on the first weekend after the commencement of school term and continue each alternate weekend thereafter).
(b) Half of all NSW gazetted school holiday periods, being the first half in even-numbered years and the second half in odd-numbered years. For the purpose of this Order, School holidays shall be deemed to commence on the last day of school and conclude on the day prior to school recommencing.
5. In order to facilitate these Orders where changeover does not occur at the commencement or conclusion of a school day, changeover shall take place at [Suburb M] McDonalds and either party shall be authorised to (and the other party shall make no complaint regarding) appoint a suitable adult to attend changeover with the children on their behalf.
6. That for the purpose of communication between the parties in relation to all parenting matters (including but not limited to the process providing for in Order 2) the parties shall communicate with each other only via email except in the case of emergency, whereby the parties shall communicate by mobile telephone, or if otherwise agreed in writing as to some other form of communication.
7. The parties shall ensure that they keep each other informed as to their current residential address, email address and mobile telephone number at all times.
8. The parties are given leave to provide copies of any Order, Judgment and any report prepared by Dr [R] to any psychologist, counsellor or psychiatrist treating that party or the children (including the psychologist for each child to be appointed pursuant to Order 9).
9. The parties do all acts and things necessary to ensure the children attend upon a psychologist nominated by the Independent Children’s Lawyer for individual child therapy.
10. The parties are restrained by way of injunction from physically chastising the children.
11. The mother and the father be and are hereby restrained from denigrating the other party in the presence or hearing distance of the children and the mother and the father shall do all things necessary to ensure no third party denigrates the other party in the presence or hearing distance of the children.
12. That the mother and the father be and are hereby restrained from speaking about matters to which these proceedings relate in the presence or hearing distance of the children and the Mother and the Father shall do all things necessary to ensure that no third party speaks about matters relating to these proceedings in the presence or hearing distance of the children.
13. That within 28 days from the date of these Orders the mother confirm in writing to the father and the [O] School that she will be solely responsible for payment of the children’s school fees.
14. Failing the mother’s compliance with the above Order 12 within 28 days from the date of these Orders, the father is at liberty to transfer the children to a suitable public school for the commencement of Term 1, 2017.
In her Amended Response to Initiating Application filed 12 May 2016, the mother proposed the following orders:
2. [B] and [C] shall live with the Mother.
3. The Mother shall have sole parental responsibility for [B] and [C].
4. For the purpose of Order 3 the Mother shall, when making decisions in relation to long term issues in relation to the Children, consult with the Father in writing and attempt to obtain the Father’s consent.
5. The Children shall spend time with the Father as follows:
5.1 on each of the Children’s birthdays from 12.00 pm until 4.00 pm if the Children are not already spending time with the Father;
5.2 in the event the Children’s birthdays fall on a school day, from 4.00 pm until 7.00 pm;
5.3 on the Father’s birthday from 12.00 pm until 4.00 pm if the Children are not already spending time with the Father;
5.4 in the event the Father’s birthday falls on a school day, on the first Saturday immediately following the Father’s birthday from 10.00 am until 4.00 pm;
5.5 on Father’s Day from 10.00 am until 4.00 pm;
5.6 on Christmas Eve from 9.00 am to 12.00 noon;
5.7 on one Saturday every 3 weeks from 10.00 am until 3.00 pm.
6. The Children’s time with the Father shall be suspended from 26 December for a period of 4 weeks.
7. Any time the Children spend with the Father pursuant to Order 5 shall be supervised by a supervisor agreed upon the parties and, failing agreement, a supervisor employed by [J Organisation] and/or [PP Organisation] (“the supervising agency”).
8. For the purpose of Order 5, the Children shall be collected from and delivered to the Mother or the Mother’s nominee by an employee of the supervising agency.
9. For the purpose of Order 7, the Father shall, at the request of the Mother, do all acts and things and sign all documents necessary to comply with any requirements of the supervising agency to enable the supervising agency to supervise the Children’s time with the Father.
10. For the purpose of the Children spending supervised time with the Father pursuant to these Orders, the Father shall be responsible for and meets the costs of such supervision.
11. The Father shall be restrained by injunction from:
11.1 taking the Children to the bathroom or toilet;
11.2 kissing the Children on the lips;
11.3 changing the Children’s clothing; and
11.4 photographing the Children, other than in their clothes.
12. If the Children are not always living with the Mother on Mother’s Day, they shall live with her on that day.
13. If the Children are not always living with the Mother on the Mother’s Birthday, they shall live with her on that day.
14. If the Children are not always living with the Mother on Christmas Day, they shall live with her on that day.
15. If the Children are not always living with the Mother on Easter Sunday, they shall live with her on that day.
16. The Mother shall do all acts and things and sign all documents necessary to provide authorities to such schools as are attended by the Children to enable the schools to provide the Father with copies of the Children’s school reports, school photographs and other documents relating to their attendance at school.
17. The Father shall be restrained by injunction from coming within 2 kilometres of the Mother’s residence.
18. The Mother shall, by these Orders, be authorised to apply for a passport in the names of [B] and/or [C] and to apply for passport renewals for each of [B] and [C].
19. The Mother shall notify the supervising agency or agreed supervisor in the event of any medical emergency in relation to the Children and shall notify him/her within two hours of such emergency occurring.
20. The Independent Children’s Lawyer shall explain the nature and effect of any parenting Order made in these proceedings to the Children.
21. The Mother and Father shall be restrained by injunction from discussing the proceedings with the Children.
22. The Mother shall not enrol the Children in any religious activity or do any act or thing to encourage the Children to attend any religious activity outside any religious instruction and/or program offered by any school at which they attend including their current school.
Property
In a Minute contained within a Case Outline document filed on his behalf on 20 May 2016, the father sought the following orders:
1. That within four (4) months from the date of these Orders, the mother shall:
a. do all acts and things and sign all necessary documents to transfer all of her right, title and interest in the property situate at and known as [K Street], [Suburb L] NSW (“the [L] property”) to the wife [sic], being the land comprised in folio identifier …; and
b. simultaneously cause any mortgage or loan account secured against the [L] property, with the exception of ANZ mortgage account …36, to be discharged.
2. That simultaneously with Order 1 above, the father shall do all acts and things and sign all necessary documents so as to discharge ANZ mortgage account …36 secured against the [L] property.
3. That the mother do all acts and things necessary to transfer to the father all of the mother’s right, title and interest in the motor vehicle registration number … including but not limited to the comprehensive and third party insurance policies.
4. That the father’s superannuation entitlement with the HESTA Industry Superannuation Fund be dealt with as follows:-
a. That the following order has effect from the operative time.
b. That in accordance with paragraph 90MT(I)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to the father from his interest in the HESTA Industry Superannuation Fund, the Mother is entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $27,734.50 and there is a corresponding reduction in the entitlement the father would have had but for these orders.
c. That, having been accorded procedural fairness in relation to the making of this order, this order binds the trustee of the HESTA Industry Superannuation Fund.
d. The operative time for this order is 7 days from service of this order upon the Trustee.
5. That other than as is specifically provided for in these Orders, the parties are solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of each of the parties as at the date of the making these Orders.
In her Amended Response to Initiating Application filed 12 May 2016, the mother sought the following orders:
23. Forthwith upon the making of these Orders, the Mother shall be declared the sole owner in law and equity of the [L] property.
24. Within 28 days of the date of the making of these Orders, the Father shall vacate the [L] property leaving it in good order and condition.
25. Within 3 months of the date of the making of these Orders and contemporaneously, the Mother shall do all acts and things and sign all documents necessary to:
25.1 transfer to the Father all her right, title and interest in the [YY] property;
25.2 discharge the [YY] mortgage.
26. Pending the making of Order 24, the Mother shall meet all the mortgage payments with respect to the [YY] mortgage and otherwise indemnify the Father in respect of same.
27. Except as otherwise provided for by these Orders the Parties shall retain, to the exclusion of the other, all personal and other property of whatsoever nature in their respective names and possession and shall be declared the sole owner at law and equity of the same.
28. Within 28 days of the date of these Orders, the Father shall do all acts and things and sign all documents necessary to transfer to the Mother registration and ownership of the box trailer ….
29. Within 28 days of the date of these Orders and contemporaneously with the Father complying with Order 24 the Mother shall do acts and things and sign all documents necessary to transfer to the Father registration and ownership of Ford Vehicle ….
30. Within 14 days of the date of these Orders, the Father pay to the Mother:
30.1 the amount of $6,050 payable to the Mother pursuant to Orders dated 30 March 2015; and
30.2 the amount of $2,500 paid by the Mother to [JJ] Consulting on behalf of the Father in accordance with the Father’s undertaking given under cover of letter dated 18 March 2015 from Newnhams Solicitors.
31. In default of any party doing any act or thing or signing any document necessary to give effect to these Orders, the Registrar of the Family Court of Australia at Sydney shall be and is hereby appointed to sign all such documents in the name of the defaulting party and the defaulting party shall be responsible for the whole costs of any such Application by the non-defaulting party to the Registrar of the Family Court of Australia.
32. …
33. The Father shall pay the Mother’s costs of and incidental to this Application.
Issues
Parenting
The issues to consider, in respect to parenting, are:
A.Has there been family violence?
B.Does the presumption of equal shared parental responsibility apply in the circumstances of this case?
C.Has the father taken inappropriate photos of the children?
D.Has the father otherwise engaged in inappropriate sexualised conduct in respect to the children as alleged by the mother?
E.What parenting arrangements are in the best interests of the children having regard to any findings made in respect to the mother’s allegations?
F.In the event that it is determined that ongoing supervision of the children’s time with the father is required what are the parameters of that supervision and what should be its duration?
Property
The issues to consider, in respect to property are:
A.What are the parties’ existing legal and equitable interests in property?
B.What is the value of those respective interests?
C.What direct contributions have the parties made to the property pool?
D.What indirect contributions have the parties made to the property pool?
E.In determining an appropriate property settlement should any adjustment be made having regard to the matters set out in s 90SF(3)?
F.In the context of the courts factual findings, what orders are just and equitable?
Background facts
The father was born in 1963 and is currently aged 53. The mother was born on in 1971 and is currently aged 44. The father is a health professional whilst the mother is a business owner.
In August 2001 the father acquired the property at RR Street, Suburb I (“the I property”), from his brother for approximately $118 000. The I property had been left to the father and his brother in equal shares under the Will of his late father.
In late 2003 the mother purchased the property at Melbourne Suburb YY, Victoria (“the YY property”) for $150 000.
The parties commenced cohabitation in Melbourne in approximately mid-2004 on the father’s account or July 2005 on the mother’s account.
In November 2005 the mother established the business, XD Company, with her then business partner Ms XX. XD Company is a fashion wear wholesaler.
On 3 February 2006 the mother’s parents gifted to the mother and her sisters their interest in the property at Melbourne Suburb KK, Victoria (“the KK property”). The gift was, however, subject to the mother’s parents retaining a life estate in the property.
On 10 April 2006 the mother and her sisters became the joint registered proprietors of the KK property as tenants in common.
In May 2006 the mother contends she commenced to work full-time in XD Company.
In approximately November 2006 the parties moved to City F from Melbourne and commenced to reside in the I property.
In 2007 the mother purchased Ms XX’s interest in XD Company for $60 000.
In late 2007 the parties’ first child, B, was born. She is currently aged eight.
On 12 June 2009 the parties purchased the property at Suburb LL (“the LL property”) for $550 000. The parties and the elder child moved into the property shortly after.
In 2010 the parties’ second child, C, was born. She is currently aged six.
In March 2012 the mother incorporated XD Pty Ltd, becoming its sole director and shareholder.
On 22 March 2012 the parties purchased the property at K Street, Suburb L (“the L property”) for $1 060 000.
On 5 October 2012 the I property was sold for $440 000.
In March 2013 the mother suffered a miscarriage.
On 12 July 2013 the parties purchased the property at Suburb E (“the E property”) for $620 000. The E property contains a warehouse which is used by the mother to operate her business.
In November 2013 the mother suffered a second miscarriage.
In July 2014 the mother purchased the business “SS” with her new business partner, Ms Z. That business also operates out of the E property.
In 2014 the mother suffered a third miscarriage.
In December 2014 the parties and the children moved into the L property.
On 24 January 2015 the parties separated on a final basis with the mother travelling to Town P with the children. Once in Town P, the mother attended upon the police alleging a history of family violence. The police subsequently applied for an Apprehended Violence Order (“AVO”) and a provisional ex parte AVO was made at the Local Court against the father for the protection of the mother and the children.
On 25 January 2015 the mother arrived in Melbourne with the children, staying at her mother’s house.
On 3 February 2015 the father commenced these proceedings by way of Initiating Application seeking parenting and property orders.
On 4 February 2015 the mother returned to City F with the children. On this date the mother also made a statement to police alleging that the father was physically violent towards her, the elder child and the family dog. The mother also alleged that the father had sexual intercourse with her whilst sleeping in the same bed as the children and had sexual intercourse with her without her consent.
On 5 February 2015 an interim AVO was made at the Local Court against the father for the protection of the mother and the children.
On 25 February 2015 orders were made by Le Poer Trench J which provided, inter alia, that:
a)The children live with the mother;
b)The children spend supervised time with the father each Wednesday and Friday for up to three hours and each Saturday and Sunday for four hours;
c)The mother deliver the children to Suburb D McDonalds at commencement of the father’s time with the children;
d)The father not approach the changeover venue or be within one kilometre of the venue until fifteen minutes after commencement of his time with the children; and
e)The father’s time with the children is to be supervised by an agreed supervisor, Ms G.
On 19 March 2015 a final AVO was made at the Local Court against the father for the protection of the mother and the children for a period of twelve months. The father contends that he consented to the final AVO on a without admissions basis.
On 30 March 2015 orders were made for the appointment of Dr R as the single expert in the parenting proceedings.
On 27 April 2015 a Child Responsive Program Memorandum was prepared by Family Consultant, Ms MM.
On 30 April 2015 Dr R provided her first report in the proceedings.
On 4 May 2015 orders were made by consent for the sale of the LL property and for the mother to pay to the father a sum of $22 500.
On 14 May 2015 Dr R provided an addendum to her first report.
On 22 May 2015 further orders were made by Le Poer Trench J which provided, inter alia, that:[1]
a)The orders of 25 February 2015 be varied so that the children spend supervised time with the father each Wednesday and Friday between 4 pm – 7 pm, and each Saturday and Sunday between 10 am – 4 pm;
b)The father be restrained from physically chastising the children or the family dog, yelling at the children, allowing the children to watch any videos or films that do not have a “G” rating and from kissing the children on the mouth;
c)Changeover take place at Suburb M McDonalds except where specified to take place at school; and
d)The parenting proceedings be expedited.
[1] See Saller & Danell [2015] FamCA 391.
On 13 August 2015 the mother filed an Application in a Case seeking that Dr R be discharged as the single expert and a new single expert be appointed or Family Report be prepared. I subsequently delivered my Reasons for Judgment, dismissing the mother’s application, on 15 October 2015.[2]
[2] See Danell & Salller [2015] FamCA 859; (2015) 54 Fam LR 416.
On 31 August 2015 the L property was sold. Each of the parties received $283 435 from the remaining proceeds of sale in accordance with the consent orders of 4 May 2015.
On 16 October 2015 the mother filed an Application in a Case seeking orders that the father’s time with the children be suspended, she have sole parental responsibility for the children, and the children spend no time with the father.
On 9 November 2015 I made orders listing the parenting and property proceedings for final hearing for five days to commence on 23 May 2016.
On 3 December 2015 I delivered my Reasons for Judgment in relation to the mother’s Application in a Case filed 13 August 2015[3] and orders were made which provided, inter alia, that:
a)The children spend supervised time with the father each Wednesday and Friday for up to three hours commencing at 4.30 pm, and each Sunday for four hours commencing at 11 am;
b)The activities the children were to participate in with the father were to be agreed between the parties and the supervisor and, in the absence of agreement, between the ICL and supervisor;
c)Changeover be effected by the supervisor collecting the children from the mother’s residence fifteen minutes prior to the commencement of their time with the father and the supervisor returning the children to the mother’s residence fifteen minutes after the conclusion of their time with the father.
[3] See Dannell & Saller (No. 2) [2015] FamCA 1072.
On 23 December 2015 the mother filed an Application in a Case seeking, in part, orders for the preparation of an adversarial expert report by Dr NN.
On 15 February 2016 I made orders, by consent, permitting the mother to provide specified documents to Dr NN for the purposes of addressing matters raised by Dr R in her reports. I also deferred the issue of the admissibility of any report prepared by Dr NN for the first day of the final hearing.
On 14 April 2016 the mother contends that after a conversation with her mother, she discovered concerning photographs of the children taken by the father on his camera prior to separation.
On 15 April 2016 the mother made a statement to the police in relation to the photographs she had discovered.
On 29 April 2016 an oral application to adjourn the interim hearing with respect to the mother’s Application in a Case filed 23 December 2015 was made. I granted the adjournment. I also adjourned the mother’s oral application to vacate the final hearing to 12 May 2016.
On 12 May 2016 legal representatives on behalf of the Commissioner of NSW Police appeared before the Court in relation to a subpoena issued by the ICL. The subpoena, in part, sought the production of photographs provided to the Police by the mother. As a precondition to the photographs being produced to the Court, the Commissioner for Police insisted that orders be made protecting the Commissioner and any officer acting on his part from potential criminal liability in respect to the production of the photographs. Accordingly I made the following orders:
THE COURT ORDERS THAT:
1. The matter is adjourned for further mention before me at 4.00 pm on 13 May 2016.
THE COURT FURTHER ORDERS THAT:
2. The Notice of Objection filed 11 May 2016 be listed before me today and the subpoena hearing listed on 18 May 2016 be vacated.
3. The Commissioner shall produce the photographs in response to the subpoena.
4. Access to the photographs shall be restricted to the Judge, the ICL, the parties’ legal representatives, any expert appointed by the Court or retained by those representatives and the parties if the Court so determines, always within the confines of the Court building, with no copies to be made unless otherwise ordered by the Court following a further Application of which the Commissioner for Police has been given notice, and the material and any copies to be destroyed or otherwise dealt with at the Court’s direction upon completion of the proceedings.
5. The Court finds that the Commissioner’s compliance with the Order in 3 above:
a. Is necessary for:
i. The Court administering the provisions of the Family Law Act 1975 (Cth.); and
ii. The administration of justice; and/or
b. Will assist:
i. The Court administering the provisions of the Family Law Act 1975 (Cth.); and
ii. The administration of justice; and
c. Is reasonable in the circumstances for the purpose of the Commissioner performing the duty as a law enforcement officer.
6. The Court’s finding at 5 above extends to any NSW Police officer acting on the behalf of the Commissioner in complying with the Order in 3 above.
7. When the parties and the legal representatives are inspecting the photographs the camera and/or other apparatus are to be handled by the legal representatives for the parties only.
THE COURT NOTES THAT:
A. On 2 May 2016 the Court issued a subpoena (“the Subpoena”) at the request of the Independent Children’s Lawyer (“ICL”) to the Commissioner of NSW Police (“the Commissioner”).
B. Responsive to the call in the schedule to the Subpoena are certain photographs of the parties’ children (“photographs”).
C. Having received legal advice from the Crown Solicitor, the Commissioner is concerned as to criminal liability arising on his part, under s.91H(2) of the Crimes Act 1900 (NSW), if he were to produce the photographs under the subpoena.
D. Section 91HA(3) of the Crimes Act 1900 (NSW) when read in conjunction with ss.91HA(4) and (relevantly) ss.91HA(4)(a) and (c) of that Act, provides alternate defences to an offence under s.91H(2).
E. Section 91HA(6) of the Crimes Act 1900 (NSW) provides a defence to an offence under s.91H(2).
In respect to the concerns of the Commissioner of Police, s 91H of the Crimes Act 1900 (NSW) (“the Crimes Act”) relevantly provides:
Production, dissemination or possession of child abuse material
(1) In this section:
…
“possess” child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).
“produce” child abuse material includes:
(a)film, photograph, print or otherwise make child abuse material, or
(b)alter or manipulate any image for the purpose of making child abuse material, or
(c)enter into any agreement or arrangement to do so.
(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.
Maximum penalty: imprisonment for 10 years.
Section 91FB of the Crimes Act provides:
Child abuse material-meaning
(1) In this Division:
“child abuse material” means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:(a) person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or
(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or
(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or
(d) the private parts of a person who is, appears to be or is implied to be, a child.
(2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include:
(a) the standards of morality, decency and propriety generally accepted by reasonable adults, and
(b) the literary, artistic or educational merit (if any) of the material, and
(c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and
(d) the general character of the material (including whether it is of a medical, legal or scientific character).
(3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)).
(4) The
“private parts” of a person are:(a) a person’s genital area or anal area, or
(b) the breasts of a female person.
On 13 May 2016 I made orders which provided that:
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. Leave is granted to the legal representatives only to inspect the additional documents produced by the Commissioner of New South Wales Police today.
2. I DIRECT the parties to each file and serve their consolidated trial affidavit by no later than close of business on 18 May 2016.
3. The is to father [sic] file and serve an affidavit relating to the issues raised in the mother’s affidavit filed 5 May 2016, together with the issues arising from photographs that have been produced to the Court by the Commissioner of New South Wales Police by no later than close of business on 17 May 2016.
4. That a certificate issue pursuant to s 128 of the Evidence Act 1995 (Cth) in relation to the whole of the affidavit of [the father] referred to in Order 3 above issue.
5. I DIRECT the mother to file and serve by no later than close of business on 20 May 2016, an affidavit which includes such additional material as she deems necessary in respect to the photographs produced under subpoena issued to the Commissioner of New South Wales Police.
6. Leave is granted for Dr [R] and Dr [NN] to inspect the photographs produced to the Court pursuant to the subpoena issued to the Commissioner of New South Wales Police and, in so far as Dr [R] and Dr [NN] consider it would be of assistance to the Court, they are requested to prepare a supplementary report that addresses the issues of the photograph.
7. Liberty is granted to the parties’ legal representatives and to the Independent Children’s Lawyer to apply on 24 hours’ notice to the other party and to my chambers.
8. The parties are to provide the Court with the list of documents on which they intend to rely by no later than 12.00 noon on 20 May 2016. Otherwise the parties are to provide their Case Outline documents by no later than close of business on 20 May 2016.
9. The parties’ costs in respect to the wife’s application for an adjournment of the final hearing be reserved.
THE COURT FURTHER ORDERS PENDING FURTHER ORDER THAT:
10. The original documents and material produced by the Commissioner of New South Wales Police be retained until further order, in the Family Court Registry at Sydney in a secure location and in sealed envelopes and is not accessed without an order of a Judge.
11. The parties’ legal representatives, the Independent Children’s Lawyer and the parties only in the company of their legal representatives, are to have an ongoing right of access to original documents and material produced by the Commissioner of New South Wales Police.
12. No person shall be permitted to access and/or inspect the subpoenaed material produced by the Commissioner of New South Wales Police, other than as provided for in Order 6 and Order 9 of these Orders, without first obtaining an order of a Judge.
THE COURT NOTES THAT:
A. The issue of the admissibility of the report to Dr [NN] and any subsequent report is to be considered on morning of the first day of the final hearing.
B. I have declined the mother’s application for adjournment of the final hearing listed to commence on 23 May 2016, on the assumption that the father will not dispute the authorship of the photographs produced in answer to the subpoena issued to the Commissioner of New South Wales Police. This does not compel the father to make that concession.
C. In the event the father does dispute the authorship of the photographs produced in answer to the subpoena issued to the Commissioner of New South Wales Police, it is my view that the mother will have substantial merit in seeking an adjournment of the proceedings to enable the mother obtain evidence regarding authorship of the photographs.
D. The parties have agreed that the balance sheet will be returned to the solicitor for the husband by close of business on 18 May 2016.
E. It may well be that in the event of the mother obtaining an expert in respect to the issues associated with the photographs produced in answer to the subpoena issued to the Commissioner of New South Wales Police, including issues such as potential modification of the photographs, it will be necessary to recall or interpose witnesses, but that will be dealt with at the time.
F. The parties have committed to providing ongoing disclosure in respect to relevant financial disclosure to each other. In that context, I note that the legal representatives for the mother have provided a list of 12 categories of documents to the legal representatives for father which they seek production of.
On 23 May 2016 the final hearing commenced.
On 24 May 2016 I made further orders that:
1. Further to Orders made by the Court on 12 and 13 May 2016, at such time as it is necessary to view the photographs provided by the Commissioner of New South Wales Police pursuant to the subpoena to produce in this matter, the Court shall be closed and conducted in camera, to all persons other than:
a. Myself;
b. The parties;
c. The parties’ legal representatives;
d. Any expert witness who may be called to give evidence in respect to the photographs;
e. Court staff (including my Associates and the Court Officer); and
f. Any other technical staff;
g. Security officers, if that is necessary.
2. The Court finds that the presence of those persons:
a. Is necessary for:
i. The Court administering the provisions of the Family Law Act 1975 (Cth.); and,
ii. The administration of justice; and/or
b. Will assist:
i. The Court administering the provisions of the Family Law Act 1975 (Cth.); and
ii. The administration of justice; and
c. Is reasonable in the circumstances for the purpose of the parties being afforded the opportunity to properly present their respective cases and the Court’s role in considering all relevant material in this matter.
3. The Court’s finding at 2 above extends to any member of the Court’s Staff acting on the behalf of the Court in facilitating the photographs being displayed for the purpose of Order 1, including in respect to any preparatory work that may be necessary outside this Court room.
Evidence and witnesses
The father initially relied upon the following material:
a)Amended Initiating Application filed 24 February 2015;
d)Financial Statement filed 18 May 2016;
e)The father’s affidavits filed 17 May and 19 May 2016 respectively;
f)Affidavit of Ms OO (the father’s psychologist) filed 18 May 2016;
g)Affidavit of Ms QQ (the maternal great-aunt) filed 18 May 2016; and
h)Affidavit of Ms G (friend of the father) filed 1 May 2016.
The mother initially relied upon the following material:
a)Amended Response to Initiating Application filed 12 May 2016;
b)Financial Statement filed 19 May 2016;
c)The mother’s affidavit filed 19 May 2016;
d)Affidavit of Ms U Danell (the maternal grandmother) filed 18 May 2016;
e)Affidavit of Ms Z (the mother’s business partner) filed 18 May 2016;
f)Affidavit of Ms T (the mother’s employee) filed 18 May 2016;
g)Affidavit of Ms BB (the maternal aunt) filed 18 May 2016;
h)Affidavit of Ms AA (friend of the mother) filed 18 May 2016; and
i)Affidavit of Associate Professor Dr VV (the mother’s treating psychiatrist) filed 24 May 2016.
The father subsequently also relied upon the following:
a)Financial Statement filed 4 August 2016;
b)Further affidavit of Ms QQ filed 23 May 2016; and
c)Further affidavit of the father filed 4 August 2016.
The mother subsequently also relied upon the following:
a)Further affidavits of the mother filed 23 May, 7 June and 12 August 2016; and
b)Affidavit of Mr TT (the mother’s accountant) filed 19 August 2016.
The ICL relied upon an affidavit of Ms FF filed 20 May 2016. Ms FF is the director of J Organisation, the supervising agency which has supervised the father’s time with the children since February 2015. Her affidavit contained a large volume of contact reports prepared by her staff.
Dr VV, Ms OO, Ms QQ and Ms FF were not required for cross examination. All other witnesses were required for cross examination.
Expert reports
In relation to the parenting proceedings, the Court had the benefit of reports by the single expert, Dr R, who prepared an initial report dated 30 April 2015 with an addendum dated 14 May 2015 (together Exhibit 22).
On the first day of the final hearing, I granted leave to the mother to rely upon the report of Dr NN dated 18 May 2016 (Exhibit 9). As noted, the mother previously (albeit unsuccessfully) sought that Dr R be discharged as the single expert in the proceedings.
On 1 June 2016, being the sixth day of the final hearing, orders were made for the parties to attend upon Dr R for the purposes of preparing an updated report. Dr R’s updated report dated 14 July 2016 subsequently became Exhibit 19.
Dr NN also provided an updated report to the Court dated 26 June 2016 (Exhibit 20). It should be noted, however, that neither the father nor the children have, at any time, attended upon Dr NN for the preparation of his reports in these proceedings.
The orders of 1 June 2016 also provided for the two experts to engage in a conference in order to:
4. …
a) Identify the issues that are agreed and not agreed;
b) If practicable, reach agreement on any outstanding issue;
c) Identify the reason for disagreement on any issue;
d) Identify what action (if any) may be taken to resolve any outstanding issues, and
e) Prepare a joint statement specifying the matters mentioned in paragraphs (a) to (d) to be provided to each of the parties and the Independent Children’s Lawyer.
A telephone conference occurred between the experts on 15 July 2016 and a joint report was subsequently provided to the Court (Exhibit 21).
Dr R and Dr NN concurrently provided their oral evidence on 21 July 2016.
In relation to the property proceedings, the Court had the benefit of:
a)A valuation report completed by Mr ZZ of ZZ Pty Ltd in relation to the L property dated 9 March 2016 (Exhibit 34); and
b)Valuation reports by Mr UU dated 16 October 2015 and 12 May 2016 (Exhibit 15) respectively in relation to the mother’s company, XD Pty Ltd.
Mr ZZ and Mr UU were required for cross examination.
Credibility of witnesses
In Carlson & Fluvium[4] Kent J cautioned about making findings of the credibility of witnesses, particularly in the context of parenting cases. In that respect his Honour at [165] said:
As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
[4] [2012] FamCA 32.
His Honour’s caution was endorsed by the Full Court in Adamson & Adamson (2014) FLC 93-622. In that respect the Full Court at 79,703 said:
It follows from [the observations of Kent J] that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to [by Kent J].
In these proceedings I have serious concerns regarding the credibility of aspects of the evidence provided by the father. The transcript does not reveal the extent to which the father paused before responding to questions asked of him in cross examination. While, on one view, taking time to respond to questions may be indicative of a cautious approach, my impression was more that the father was, on several occasions, formulating a response which he felt best suited his case. In particular, in respect to those instances, despite being asked questions in the context of specific allegations made by the mother, the father denied propositions on the basis that he did not feel that the question was sufficiently precise.
His approach, in that respect, is best demonstrated in the reasons provided by the father for failing to advise Dr R that he had taken steroids. When pressed about the matter, the father stated that his reason was because Dr R did not ask a general question as to whether he had taken steroids but rather:
…she was referring to the timeline you were asking me earlier, around Christmas [2014] in regards to what was taken out of the fridge. … she said, were you injecting steroids around that time, or were they steroids, and I said no, they were not.[5]
[5] Transcript dated 23 May 2016 at page 76.
When asked whether honesty would have required the father to tell Dr R about his use of steroids in November 2013 he stated that “she did not ask me” and that her questions “were very specific, and I answered them specifically.”[6]
[6] Transcript dated 23 May 2016 at pages 76-77.
Other examples of the father adopting a similar approach included where the father:
·initially denied “throwing” a phone at the mother;
·initially denied demonstrating martial arts techniques on the mother;
·initially denied that the striking of the mother’s head with his own in 2008 was other than “a reflex defensive response”[7] which he described as “the incident where we had bumped heads ”;[8] and
·most significantly, stating that a photo taken of his daughters genital areas when they were lying in the bath was a consequence of him taking random shots rather than intentionally focusing upon that area of their bodies.
[7] Transcript dated 24 May 2016 at page 137.
[8] Transcript dated 23 May 2016 at 67.
I will discuss the last two of those incidents in greater detail when I consider the mother’s allegations that the father has engaged in acts of family violence and displayed sexualised interest in the children.
Nevertheless, it is not necessary to make any adverse findings in respect to the father’s credit, as a witness, in order to determine the issues in dispute between the parties. Instead, in resolving the relevant disputed questions of fact, I have focused on the first three factors suggested in the often cited extra-judicial writing of Lord Bingham:
(1) the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2) the internal consistency of the witness’s evidence; [and]
(3) [the] consistency with what the witness has said or deposed on other occasions.[9]
[9] Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74]. More recently referred to in McGlen-McLeod v Galloway [2012] NSWCA 368 at [87].
I also have concerns with aspects of the evidence provided by Dr R, who is the single expert appointed by the Court in respect to the parenting proceedings. In that respect, I agree with and accept the submissions of the ICL, that Dr R’s evidence was partisan (in favour of the father) and lacked professional objectivity. This is shown by the following examples.
Dr R herself described her approach to reporting as “not balanced”. She did not see it as her role to provide a balanced opinion to the Court. In Dr R’s own words, this “sets her apart” from other experts.
Dr R’s approach to assessing the naked photographs of the parties’ children, taken by the father, and any risk issues that may arise in relation to the photographs, was wholly inadequate insofar as she did not ask the father any specific questions about two photographs in particular (numbers 00970 and 001075). This was despite Dr R being of the view that two of those photographs were of concern because they “objectified” the children.
Despite failing to question the father in respect to those two photographs Dr R was prepared to conclude that neither of the photographs were intentionally taken by the father with a view to objectifying the children in a sexualised way.
Dr R went beyond her role as an expert witness in speculating that the father had a possible artistic motive in taking the photographs with a view to making the children look like “Venus De Milo.” That proposition had no evidentiary basis.
Dr R opined that she did not “believe someone with paedophilia tendency would want to take photos of their own daughters” and that she did not “believe someone who was a paedophile would just take one photo”. Dr R failed to provide the basis for her opinion in that respect, and I agree with the submission by the ICL that from a common sense perspective the conclusion must be inaccurate.
Dr R’s analysis of the photographs was also inadequate in that she focused simply on whether the photographs demonstrate that the father was a paedophile, including whether he had “masturbated” to the photographs. Dr R did not, however, go any further to considering the nature of the photographs themselves, as well as more subtle risk issues that may arise from the subject matter of the photographs or the circumstances in which they were taken. In that respect, Dr R made no mention of the fact that the naked photo of the children’s private parts, taken in the bath, had been intentionally focused such that it included only the children’s genital areas.
Dr R remained sceptical that a handwritten note found by the mother on the kitchen bench at the parties’ former matrimonial home was in fact written by the father despite having had the opportunity of reading the father’s cross examination where he clearly admitted to having written the note.
Dr R’s assertion that there was some inconsistency between the mother’s fear for the safety of the children in the care of the father, and her lack of fear in relation to a male J Organisation worker, who was employed as a contact supervisor, was illogical.[10]
[10] Report of Dr R dated 14 July 2016 at page 39.
Dr R’s opinion that the mother “was a strong, independent woman, unlikely to tolerate the alleged abuses [by the father]” [11] demonstrates that Dr R was prepared to dismiss the mother’s allegations on the basis of a baseless generalisation that had no logical or scientific basis. In that respect, Dr R referred the Court to an article by Messrs Fonagy, Steele, Steele, Moran and Higgitt titled “The Capacity for Understanding Mental States: The Reflective Self in Parent and Child and Its Significance for Security of Attachment”[12] which became Exhibit 28. That article had nothing whatsoever to do with the subject matter of women being subject to domestic violence let alone the contention that “a strong, independent woman” was unlikely to tolerate family violence. A reading of Dr R’s report shows that the proposition was more likely a repeat of the views communicated to her by the father.[13]
[11] Report of Dr R dated 30 April 2015 at pages 25-26.
[12] Mental Health Journal, Volume 12, Number Three, Fall 1991.
[13] Dr R’s report dated 30 April 2015 at pages 25-26.
Dr R was dismissive of the father’s admission of steroid use under cross examination despite the fact that his response to her questions caused her to record, in her report, that the father “denied injecting himself with steroids.” On that basis she concluded that the mother had made a baseless allegation against the father in that respect. I also agree with the submission of the ICL that it was unreasonable for Dr R to reject the father’s steroid use as being an issue of potential relevance in these proceedings.
Rule 15.59 (3) of the Family Law Rules 2004 (Cth) (“the Rules”) provides that the duties of an expert witness include to:
(a)give an objective and unbiased opinion that is also independent and impartial on matters that are within the expert witnesses knowledge and capability;
…
(d) Consider all material facts, including those that may detract from the expert witness’s opinion; …
Rule 15.64 sets out the consequences of an expert witness failing to comply with the Rules including rule 15.59 to which I have referred. One such consequence is set out in rule 15.64(c) which permits the court to:
(c)allow the report to be relied on but take the non-compliance into account when considering the weight to be given to the expert witness’s evidence.
I intend to take that approach in respect to the evidence of Dr R.
On the first day of the hearing I permitted the mother to rely upon reports prepared by Dr NN in respect to these proceedings. I gave brief reasons for doing so. Dr NN acknowledged the limitations in respect to his reports in so far as he did not have the opportunity of interviewing the father or the children and he did not have available to him the affidavits that had been filed by the parties.
As noted by the Full Court in Re W and W (Abuse allegations; Expert evidence),[14] there are ““grave dangers” in [relying] upon expert evidence given in such circumstances”. This is particularly so where the expert is called as an “adversarial” witness, in this instance, in the mother’s case.
[14] [2001] FamCA 216 at [147].
Nevertheless, I respectfully agree with the submissions of the ICL that Dr NN’s evidence was “in fact very balanced and considered – far more so that Dr [R]”.
In the circumstances, I intend to give weight only to those parts of the expert evidence that are agreed between Dr R and Dr NN or to which I specifically refer.
Senior counsel for the father raised an issue of credibility in respect to the mother’s evidence arising from the fact that the father alleged she had failed to disclose relevant accounting information in respect to her business interests. Most relevantly, it was alleged that the mother had failed to disclose the fact that her business partner, Ms Z, had withdrawn partnership funds and deposited them as an offset against her home mortgage account. It was further alleged that the mother had failed to properly account for the initial contributions that she and her partner had made towards the partnership. It was also alleged that the mother had failed to insist on the partnership paying rental due to her trust company in respect to the partnership’s occupancy of the E property which is owned by the mother’s Trust company.
While I have some concerns in respect to aspects of the accounting associated with the mother’s business interests, the mother responded to questions concerning those matters in a direct and forthright manner. In any event, the answers provided by the mother in respect to those accounting matters was not such that it impacted upon my assessment of her credibility generally and, specifically, the evidence she provided in respect to the parenting matters. While the mother’s evidence was, at times, delivered in an emotional way I accept that she endeavoured to answer questions in a direct manner and I accept her to be a witness of truth.
Subject to making some allowance for the fact that those non-expert witnesses who were required to attend for cross examination gave evidence on behalf of one of the parties and, to that extent, could be expected to provide evidence in support of that party’s position, I nonetheless found those witnesses answered questions in a direct and forthright manner and I did not detect an attempt by any of those witnesses to lie or to mislead the Court.
parenting matters
The Law - Concepts and Principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(4) notes that an additional object of Part VII of the Act is to give effect to the Convention on the Rights of the Child (“the Convention”).[15] The following provisions of the Convention are relevant to the consideration of this matter:
[15] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
·Article 16 of the Convention provides that “No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.”
·Article 19 of the Convention requires parties to the Convention to take steps, including through “judicial involvement”, to:
protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
·Article 34 of the Convention require parties to the Convention to “protect the child from all forms of sexual exploitation and sexual abuse” including taking all appropriate measures to prevent:
(a)The inducement or coercion of a child to engage in any unlawful sexual activity;
(b)The exploitative use of children in prostitution or other unlawful sexual practices;
(c)The exploitative use of children in pornographic performances and materials.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c)), and to protect them from family violence (s 43(1)(ca)).
Section 61DA(1) provides that the Court must apply a presumption that “it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”. Relevantly for these proceedings, s 61DA(2) provides that the presumption does not apply if:
(2) …there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
Family violence is defined in s 4AB(1) of the Act as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence and relevantly for these proceedings includes:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property;…
Section 4AB(3) provides that “a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence”. Section 4AB(4) provides a non-exhaustive list of situations that may constitute a child being exposed to family violence which includes “seeing or hearing an assault of a member of the child’s family by another member of the child’s family” (s 4AB(4)(b)).
The presumption of equal shared parental responsibility
I will subsequently give more detailed consideration of the mother’s allegations that the father has engaged in acts of family violence. For the purposes of determining whether the presumption of equal shared parental responsibility applies it is sufficient to note the following:
·The father admitted he was “physically violent”[16] to the mother when, on 18 January 2008 he struck the mother with his head although the father described it as “the incident where we had bumped heads”[17] rather than a head butt. He further asserted his action was a reflex response to being advised by the mother that she intended to leave him with their six week old daughter. As I will discuss, I have found that the father’s action was a deliberate and violent physical assault on the mother.
·The father admitted that in March 2008, during the course of the parties having an argument, he threw a “banana skin”[18] at the mother striking her in the back of the head.
·The father admitted that in September 2014, during the course of an argument between the parties concerning finances, he “flicked”[19] a phone at the mother. The father denies, however, that the phone was thrown forcibly or that it struck the mother in the abdomen.[20]
·The father admitted that in an incident that occurred on 11 December 2014 when the father kicked the door of the mother’s car in anger he said to her “get in the fucking car”[21] and “I called your phone. You didn’t fucking answer me.”[22] The father acknowledged that the mother “appeared to become fearful of [him] that night” [23] although he sought to justify his conduct in the context of being “exasperated” and “frustrated” at the pressures of moving houses.[24]
·The father has generally admitted using “coarse language” towards the mother although he states that she similarly used coarse language towards him.
·The father acknowledges verbally abusing the mother including calling her a “psycho”[25] and stating that she came from a “dysfunctional family.”[26] Once again, however, the father asserts that the mother similarly insulted him.
·The father acknowledges that the nature of the language he used and the insults he made of the mother constituted emotional abuse although, once again, he asserts that the mother also engaged in similar conduct.
[16] Transcript dated 23 May 2016 at page 67.
[17] Transcript dated 23 May 2016 at page 67.
[18] Transcript dated 23 May 2016 at page 94 and Transcript dated 24 May 2016 at pages 140-141.
[19] Transcript dated 24 May 2016 at page 144.
[20] Transcript dated 24 May 2016 at page 144.
[21] Transcript dated 24 May 2016 at page 146.
[22] Transcript dated 24 May 2016 at page 146.
[23] Transcript dated 24 May 2016 at page 146.
[24] Transcript dated 24 May 2016 at page 146.
[25] Transcript dated 24 May 2016 at page 121.
[26] Transcript dated 24 May 2016 at page 131.
In December 2009 XD commenced selling the homewards range in shopping centres.
In around September 2010 the wife arranged for the XD products to be relocated to another warehouse and continued to work from the office that had been established at the LL property.
In March 2012 XD was incorporated with the wife as the sole director and shareholder. After being incorporated XD Pty Ltd extended its business operations to include the wholesale of homewares.
As noted, in January 2013 the wife purchased the E property from which she operates XD and, with Ms Z, the SS partnership.
In 2014 XD diversified its operations through founding and acquiring the following businesses:
(a)SS;
(b)WW; and
(c)XYZ.[134]
[134] Mr UU’s report dated 16 October 2015 – Exhibit 15 at [2.3.7].
Of those businesses so acquired, the most significant is SS which, as previously noted, was purchased in July 2014 by XD and the FX Trust.
There is no question that the wife has devoted considerable time and exercised considerable skill and initiative in developing her business interests and she is entitled to recognition of that fact.
Renovations Undertaken by the Husband
During the course of the parties’ relationship the husband organised and undertook some work in respect of renovations at the I property, the LL property and the L property.
Broadly speaking the respective renovations were as follows:
·The I property: The husband spent approximately 30 hours per week for a period of three to four weeks completing the work necessary to prepare the I property for sale including painting the exterior of the residence, erecting a partition wall to divide one room into two, installing new carpet and installing a new kitchen bench, as well as undertaking various gardening tasks. The husband undertook some tasks himself and organised skilled labour to undertake those tasks beyond his capability.[135]
·The LL property: The husband attended to overseeing the interior painting, completed extensive gardening and clearing on the property and oversaw a renovation and update of the bathroom.[136]
·The L property: Over a six month period in late 2014, the husband spent an average of 20 to 25 hours per week overseeing renovations to the property including designing a concept for renovation of the kitchen, dining and living rooms and installation of built-in wardrobes in the bedrooms. The husband sourced and liaised with tradesmen such as builders, plasterers, plumbers, electricians, tilers, carpet layers and other builders to complete the floor-sanding and finishing. The husband also undertook less skilled tasks such clearing the yard of trees, travelling to the tip to dispose of waste, jack hammering a tile floor in preparation for retiling and removing and disposing of old carpet. The husband also undertook the task of keeping the work sites clean and accessible.[137]
[135] Husband’s affidavit filed 19 May 2016 at [28].
[136] Husband’s affidavit filed 19 May 2016 at [29].
[137] Husband’s affidavit filed 19 May 2016 at [33].
The husband is entitled to recognition for the work he has undertaken which, it is reasonable to assume, has increased the value of the respective properties. The husband acknowledges, however, that the renovations of the L property, at a cost of approximately $100 000 were paid for by the wife. This, he says, was as a result of the fact that he was not in gainful employment at the time.[138]
[138] Husband’s affidavit filed 19 May 2016 at [33].
Consideration of Direct Contributions
As noted, I am unable to make an assessment as to the value of the parties’ initial contributions because valuations were not conducted of their respective real estate interests at that time. It is not, however, unreasonable to assume that the value of the husband’s property interest at Suburb I exceeded the value of the wife’s YY property. In that context, I note, that it is agreed between the parties that the I property was sold in October 2012 realising approximately $385 000 after payment of the mortgage. The parties agreed that the value of the YY property is $270 000.
However, it is not appropriate to attribute the entirety of that amount ($385 000) as a contribution to the matrimonial property by the husband. In that context, I note for instance, that the value of the mortgage on the I property as at 19 September 2006 was $68 448.76,[139] whereas at the point of sale in October 2012 the mortgage had been reduced to $55 863. It is clear that the wife made a contribution to the reduction in that mortgage.
[139] Husband’s affidavit filed 19 May 2016 at [9].
Nevertheless, the amount of $385 000 received as net proceeds of the sale of the I property exceeds the net value of the YY property which, can be calculated by deducting from the agreed value of $270 000, the amount of $139 187 being the agreed amount of the mortgage, which calculates to a net value of $130 813.
Further, as noted, the wife is entitled to recognition of the fact that she benefited from her parents gifting to her the property at Suburb KK which the parties agree is valued at $84 416.[140]
[140] Item 6 on the Balance Sheet – Exhibit 38 and Transcript dated 29 August 2016 at pages 20 and 31.
Accordingly, having regard to those properties that the parties individually brought into the relationship, I am satisfied that the husband’s contribution of the I property exceeded the value of the wife’s contribution of the L property and KK property by approximately $169 771.
In identifying that amount as the approximate difference between the parties initial contributions I note, however, that the appropriate focus of the Court in considering initial contributions in the context of the totality of contributions made by parties to a marriage is a question of “what weight is to be attached, in all the circumstances, to the initial contribution.”[141]
[141] Pierce & Pierce (1999) FLC 92-844 at 85,881.
I am satisfied that the remaining properties listed on the Balance Sheet together with the LL property which has now been sold, were acquired with the joint funds of the parties.
Those joint funds were acquired by the husband working as a health professional until March 2012 and from the wife’s business endeavours to which I have referred.
Parenting and Homemaker Contributions
The husband acknowledged that in the period prior to him resigning as a health professional in March 2012 the wife was the primary carer of the children. Nevertheless, I accept the husband’s evidence that during the course of the parties’ relationship he contributed to undertaking household tasks including washing clothes, general cleaning of the house as well as assisting in cooking and grocery shopping. I also accept that the husband undertook responsibility for the maintenance of the garden as well as undertaking basic household maintenance. I also accept that the husband maintained the parties’ motor vehicles although he utilised professional mechanical assistance where required.
As noted, the husband acknowledges that subsequent to the birth of the elder child in late 2007 and until March 2012, the wife was the primary carer of the children. Nevertheless I accept that, during that period, the husband assisted in the care of the children including, at times, supervising them and cooking their meals as well as taking the children to their playgroup.
The parties agree that the husband ceased work as a health professional in March 2012 in order to take a greater responsibility in respect to caring for the parties’ children. The parties are in dispute as to the extent to which the husband took on that role however, I accept that, during that period the husband performed the majority of parenting duties for the children including but not limited to, usually waking them up, getting them dressed for school and pre-school, washing and preparing their school uniforms, preparing breakfast, organising lunch, packing their school bags and usually taking them to and from school and to extra-curricular activities.
I note, in paragraph 39 of his trial affidavit filed 19 May 2016, the husband acknowledges that, in the period from March 2012 until the parties separated on 24 January 2015, the wife also assisted with parenting duties when she was at home.
There is a dispute between the parties as to the extent to which the husband assisted in the wife’s business in the period after he resigned as a health professional in March 2012. In that respect I note that the husband does not assert that he provided regular or extensive assistance but rather that he:
…provided assistance to the [wife] in conducting her business from time to time, particularly in the early years of our relationship when she was establishing and building up her business….[and] was not paid for [his] efforts, but … happily performed such tasks for the benefit of [XD], being the family business and therefore of a direct benefit to our family.[142]
[142] Husband’s affidavit filed 19 May 2016 at [21].
In the period subsequent to the parties’ separation on 24 January 2015 the children have lived with the wife and, other than those times that they have spent on a supervised basis with the husband, the wife has been exclusively responsible for their care including the children’s physical and emotional support.
Evaluation of Contributions
The issue of contributions was recently considered by the Full Court in Grier & Malphas [2016] FamCAFC 84. In that case the Full Court upheld an appeal against a decision of the trial judge who held that there should be a 60 per cent adjustment in favour of the husband as a result of the fact that during the course of the parties relationship he had applied his “skill set” in developing a very successful business that, when sold, accounted for most of the matrimonial property of the parties. The Full Court emphasised at [135] that:
What skill or skills a person brings to a relationship which are said to result in the making of money or accumulation of capital is no more or less relevant than the skill set a person brings to a relationship as a homemaker and parent, or as the performer of two roles as a homemaker and parent and income earner. The “skill set” or “potential” of “talent” a party brings to the role or roles which the parties have determined each will undertake in the relationship is, for s 79 purposes, relevant only to how those attributes manifest themselves in what s 79 says must be considered.
In describing where the trial judge was in error, Bryant CJ applied Fields & Smith (2015) FLC 93-638 where the Full Court said at [43]:
If it is necessary to make the point again, and to highlight it for the purpose of this appeal, we add our endorsement to what has been made clear in the authorities referred and to the Full Court’s comments in [52] of Hoffman, that the words of s 79 do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being, by virtue of that category or class, more valuable or important [than] another. In each case the contributions made by the parties must be evaluated in the context of the facts particular to that case.
Further, in Grier & Malphas (supra), in their joint judgment, Murphy and Kent JJ at [136] said:
It is not a party’s “skill set” which must be considered, but their contributions. Contributions are the product of many things: talent, industry, selflessness and, indeed luck, to name a few. It is the contributions (in all senses in which that expression is used in s 79) that fall for consideration and assessment, not the combination of factors that has created the capacity for the making of those contributions.
In summary, Grier & Malphas (supra) confirmed that a party’s contributions as a parent and homemaker are of no less value than a party’s contribution as the primary income earner of the family. The task before the Court is, on the facts of each individual case, to determine the respective contributions of the parties rather than to value each parties’ respective contributions according to the sphere in which the contribution was made. That analysis clearly applies whether or not the contribution as a parent and homemaker is undertaken by a male or a female.
Evaluation of Contributions
In terms of the parties direct contributions it is reasonable to conclude that the husband’s contribution of the I property exceeded the value of the wife’s contribution of the YY property although it is not possible to value the extent of the difference of those contributions. I note that the wife is entitled to recognition of the fact that she contributed the KK property which was gifted to her by her parents, and further note that it is acknowledged that the wife contributed $100 000 to the renovation of the L property. I have also had regard to the fact that the husband contributed to some improvement of those properties in the form of work directly undertaken by himself and also in the supervision of tradesmen where required.
In this matter I accept that, in the period from the commencement of the parties’ relationship until March 2012, the wife’s contributions included not only being the primary carer of the children but also working to develop a successful business. I acknowledge that, during that period the husband also made a contribution in terms of the salary that he was able to contribute to the relationship. The husband also contributed in respect to parenting and performing other household tasks which I have referred to in detail earlier in these Reasons.
On balance, however, I am satisfied that given that the wife’s contribution was in respect to both developing a successful business and also as the primary carer of the children, that she is entitled to some additional recognition for her contributions during that period.
In the period from March 2012 until January 2015; I accept that the husband undertook primary responsibility in respect to parenting matters and household tasks and responsibilities to which I have referred. I am satisfied, however, that the wife continued to make a substantial contribution in respect of those matters. The wife also continued to devote great attention to her business activities and generated a comfortable income for the parties. On balance, I evaluate each of the parties’ contribution during the period as being equal.
In the period subsequent to 24 January 2015; the wife has contributed both in respect to her business activities as well as being exclusively responsible for the care and physical support of the children other than for those limited times that the children have spent time with the husband. The wife is entitled to recognition in respect of the significant contribution she has made in that period since 24 January 2015.
In summary, I find the parties direct contributions to the matrimonial pool were broadly equivalent to each other’s. I also find, in the period from when the husband ceased work in March 2012 until the parties separated in January 2015, that the parties’ indirect contributions were broadly equivalent. I find, however, that in the period prior to March 2012 the wife is entitled to greater recognition of her contribution insofar as she was the parent with primary responsibility for the children as well as the fact that she devoted considerable time and effort to developing her business interests. I further find that the wife is entitled to recognition of making a significantly greater contribution than the husband in the period subsequent to the separation of the parties, (24 January 2015), as a result of her parental and homemaker responsibilities as well as the time and effort she has continued to put into her business interests. During this period the wife has also continued to pay the mortgage on the L property while the husband has had the benefit of occupancy of that property.
On balance, therefore, I am satisfied that a distribution of fifty-five per cent in favour of the wife is appropriate.
Matters to be Taken into Consideration Pursuant to Section 90SF
In terms of those matters set out in s 90SF(3) that I regard to be of relevance, I note the following:
(a)In terms of s 90SF(3)(a), the husband is aged 52 and the wife is aged 44. It is acknowledged by both parties that they are generally in good health although the husband asserts that, as a result of two work accidents that he suffered in 2011, he has a permanent disability to his back which may adversely impact upon his future earning capacity. No medical evidence was, however, provided to indicate the extent to which any such injury may impact upon the husband’s future earning capacity. As against that contention, it is to be noted that the husband regularly attends a gym and is a keen surfer. Accordingly, I do not think that any weight should be given to the husband’s contention that he is not physically fit to return to employment as a health professional.
(b)The husband asserts that the future earning capacity of the wife is substantially greater than that of the husband. In that respect the husband refers to the single accounting expert expressing the view that, as a result of her business interests the wife receives the benefit of an adjusted income in the range of approximately $100 000 per annum together with superannuation and other indirect benefits including a fully maintained motor vehicle. It was further asserted that the wife receives an annual profit generated by the enterprise which is normalised at $24 653 per annum.
(c)The husband further asserted that the financial statements of the partnership SS, for the period ended 30 June 2016, suggest that it is and will continue to be a highly profitable business for the wife and her business partner, Ms Z. In that respect it was contended that;
It [[SS]] produced enough to buy $120,000 worth of stock in the first year of its operation [2015]. It produced enough in the second year of its operation [2016] to put $110,000 in Ms [Z’s] account in or about November or December 2015 and has stayed there. It wasn’t required for cash purposes. And, in addition …. sandbagging the money in that account, an additional $60,000 worth of stock levels were increased in the [2016] year.[143]
[143] Transcript dated 29 August 2016 at page 17.
I accept the substance of the husband’s submission in respect to the potential earning capacity of SS and hence the wife’s share in the profitability of that enterprise through her interest in XD. Therefore, it is likely that, in the future, the wife’s income will be greater than that which she has declared, as her current income, in her Financial Statement. However, the information is not such that I am able to quantify what that additional income will be.
I find, however, that the husband also has a substantial earning capacity. During the course of giving oral evidence, on several occasions, the husband referred to the fact that he has significant skill and experience as a health professional. I am satisfied that he has the capacity to utilise that skill and experience. A matter of concern in respect to the husband’s conduct since the parties separated in January 2015 is that the husband has not, in my view, made reasonable endeavours to obtain employment. In that respect, as at the hearing, the husband had only obtained employment for a three month period at the XXX hospital from 23 November 2015 until 27 February 2016.
The husband contends that his ability to engage in employment:
…has been adversely impacted upon by the terms of the supervised / spend time with orders, whereby he has been required to be available for the children for 4 days during each week...[144]
That submission, with respect, lacks merit, particularly in circumstances where the husband acknowledged that his efforts to obtain employment has essentially been to telephone previous colleagues with a view to ascertaining whether they are aware of any prospective employment opportunities.[145]
[144] Husband’s Summary of Argument Document at page 10 at [11].
[145] Transcript dated 20 June 2016 at pages 546-547.
In terms of s 90SF(3)(c) and (d), I note that it is of significance that, as a result of the parenting orders I will make, the wife will have a much greater responsibility than the husband with regards to the care and control of the children who are both of a relatively young age.
In terms of s 90SF(3)(j), I acknowledge that the role undertaken by the husband as primary carer of the children in the period between 12 March 2012 and 24 January 2015 enabled the mother to devote a greater amount of time to her business activity and hence, in that context he has contributed to the income of the business, and the wife’s earning capacity as well as the wife’s property and financial resources. The father also agreed to the wife operating her business from the parties’ various residences in its early years of operation.
In terms of s 90SF(3)(k), I note that the parties were in a de facto relationship for a period of nine and a half years during which time they had the children. I further note that, in March 2012, the husband resigned from his employment in order to take a greater role in respect to parenting and as a homemaker. It is reasonable to assume that the period out of the work force would have adversely impacted upon the husband’s earning capacity. However, having accepted that fact, as previously stated, it is my view that the husband has failed to make reasonable endeavours to exploit his earning capacity as a highly trained and experienced health professional.
In terms of s 90SF(3)(q), I note that, despite the fact that the children have been living with the wife since the parties separated on 24 January 2015, the husband has not paid any child support under the Child Support (Assessment) Act 1989 (Cth). Based on the husband’s failure to pay child support to date, I acknowledge the valid concerns of the wife that she will not, in the future, receive any child support payments from the husband.
In terms of s 90SF(3)(g), I note that the husband argues that his standard of living has decreased subsequent to the separation of the parties. In that respect, however, I note that, despite his initial offers to vacate the property for the wife and children to live there, the husband has continued to reside in the parties’ former matrimonial property. The property is in close proximity to a surfing beach where the husband regularly surfs and from where he goes for bike rides and attends the gym. The wife has attended to payment of the mortgage commitments in respect of that property and the husband has not paid any rent to the wife in respect to his occupation of that property. Insofar as the husband has suffered a reduction in his standard of living since the parties separated that is, in my opinion, substantially due to the fact that the husband has failed to take reasonable steps to exploit his earning capacity.
In terms of s 90SF(3)(r), it was argued, by senior counsel for the husband, that the Court should have regard to the fact that, since the parties separated, the wife has had access to funds that she has withdrawn from various bank accounts and/or borrowed on the basis of security provided by the matrimonial properties. In that respect, it was argued that the wife has had the benefit of capital drawn as follows:
·$150 000 drawn on the YY property mortgage;
·$52 639 drawn on the L property mortgage;
·$50 000 drawn on the E property mortgage on 22 January 2015;
·$65 000 drawn on the E property mortgage on 12 January 2016; and
·$52 329 drawn on the LL property mortgage.[146]
[146] Transcript dated 29 August 2016 at page 19.
It was submitted that the wife has failed to provide proper disclosure in respect to those funds and she has failed to properly account for the expenditure of those funds.
On the other hand, the wife refers to the affidavit that she filed on 7 June 2016 detailing funds that she has had access to and received in the periods immediately prior to and subsequent to the parties’ separation. The amount totals approximately $565 000. It was submitted that that amount can be accounted for having regard to various items on the Balance Sheet being as follows:
·Item 22 – legal fees $493,134
·Item 26 – funds held in Gordon & Barry Trust Account $28,743
In addition, the wife contends that legal fees that she has paid on behalf of the husband totals $17 000.[147]
[147] Transcript dated 29 August 2016 at pages 28-29.
Accordingly, the wife contends that she has properly accounted for $540 000 of the $565 000 that she has benefited from by way of capital drawings or receipts.[148]
[148] Transcript dated 29 August 2016 at pages 28-29.
In light of that disclosure by the wife I do not make any adverse findings against the wife in respect to non-disclosure concerning the capital that she has had access to since the parties separated. I note, in that respect, that in addition to legal expenses the wife has incurred other significant expenses since separation. As I have noted, those expenses have included paying the rent and expenses of the accommodation that she has shared with the children and she has also continued to meet the mortgage commitments of the L property in which the husband continues to reside. She has also continued to meet the educational expenses of the children and the expenses associated with their extra-curricular activities.
Evaluation of s 90SF Factors
The most significant matter that I have regard to is the fact that it is inevitable that the wife will continue to incur considerable expenses in providing for the physical needs of the children including meeting costs associated with their daily living expenses, their education costs and the costs of their extra-curricular activities as well as any potential medical expenses.
I acknowledge that the wife has a greater earning capacity than the husband however, I am satisfied that the husband nonetheless has a significant earning capacity even though he is not taking reasonable steps to exploit that earning capacity.
As against the future expenses that will be incurred by the wife, pursuant s 90SF(3)(r), I have had regard to the fact that, in light of the parenting orders that I will make, the husband will be responsible for meeting the costs of supervision of the time that the children will spend with him. The husband will continue to incur that expense until 6 July 2020 being a period of approximately three years and four months.
Having regard to all of the relevant s 90SF(3) matters to which I have referred, including those that I have identified as being of greatest significance, it is appropriate that there be a further adjustment of 5 per cent in favour of the wife pursuant to s 90SF(3) of the Act.
Conclusion and overview
Accordingly, having had regard to the matters set out in s 90SM of the Act, including by reference to relevant considerations under s 90SF(3), I intend to make orders for there to be an adjustment of the parties’ property interests of 60 per cent to the wife and 40 per cent to the husband.
As previously noted, the total net assets of the parties is $2 175 170. An adjustment of 60 per cent to the wife and 40 per cent to the husband would result in the wife receiving the sum of $1 305 102 and the husband receiving the sum of $870 068.
As identified by the Court, the wife currently retains or has had the benefit of:
Table 1.
Description Value 50% interest in LL Property (sold) $0 50% interest in Household contents L Property $2,500 YY Property $270,000 L Property $1,280,000 E Property (inc in unit trust value) $0 KK Property VIC (subject to a life estate) 1/3 interest $84,416 XD Pty Ltd (as at 30/06/2015) $84,169 Interest in SS (incl in XD Pty Ltd) $0 Funds held in Ms Z’s bank account property belonging to SS withdrawn in financial year ending 30 June 2016 $0 Ms Danell Unit Trust $44,030 SS (calculated at $300 per week from 1 July 2014 to 15 August 2016, being 110 weeks) $0 XD Pty Ltd & FX Pty Ltd ATF FX Trust T/A SS ABN … $0 Ford motor vehicle $4,000 Household contents rental property $2,000 Bankwest Account #...04 $481 Bankwest Account #...95 (closed) $0 ANZ Account #...18 $90 ANZ Etrade Account #...56 $11 ANZ Cheque Account #...06 included in value of XD Pty Ltd $0 Director’s Loan owing from XD Pty Ltd (as at 30/06/2015) $194,915 Legal Fees $493,134 Funds held in Gordon & Barry Trust Account $28,743 Superannuation – TPS Super Member #...31 $32,675 Less ANZ Loan Account #...36 (Fixed secured on L Property) -$471,306 ANZ Loan Account #...59 (Variable secured on L Property) paid out on sale of LL Property $0 ANZ Loan Account #...74 (Secured on E Property) (included in value of trust) $0 ANZ Loan Account #...27 at 8/3/16 (YY Property) -$139,187 Westpac Mastercard #...47 ($1,068.04 as at 12 August 2016 but ought by excluded as post separation expenditure) $0 Loan to Ms U Danell -$25,000 Loan to Ms BB -$47,000 TOTAL (NET) $1,838,671
Accordingly the wife holds net assets to the sum of $1 838 671, which exceeds her entitlement by $533 569.
As identified by the Court, the husband currently retains or has had the benefit of:
Table 2.
Description Value 50% interest in LL Property (sold) $0 50% interest in Household contents L Property $2,500 ANZ Account #...78 (as at 04/08/16) $142 ANZ Account #...64 (as at 04/08/16) $9,064 Paid Legal Fees $230,640 Funds held in Clinch Long Woodbridge Trust Account $6,458 Superannuation – 30/06/15 $87,695 Less: ANZ Visa Card #...64 ($531.00 as at 12 August 2016 but ought by excluded as post-separation expenditure) -$0 TOTAL (NET) $336,499
Accordingly the husband holds net assets to the sum of $336 499, which leaves him with a shortfall of $533 569. Therefore there will need to be an adjustment of matrimonial property, in the amount of that shortfall, to the husband.
In circumstances where the wife is the primary carer of the children it is appropriate that she be given the option of retaining the L property. The orders will therefore provide for the wife to discharge the existing mortgage secured over the YY property, transfer the YY property to the husband and, in addition, make a payment to him in the sum of $263 569.
The alternative
In the event that the wife is unable to comply with an order that she discharge the mortgage secured over the YY property, transfer the YY property to the husband and pay him the sum of $263 569 within three months from the date of the Orders, the L property will have to be sold and the sale proceeds divided 60 per cent to the wife and 40 per cent to the husband (after the payment of associated sale costs). Removing the L property from the Balance Sheet, the wife would retain the following:
Table 3.
Description Value 50% interest in LL Property (sold) $0 50% interest in Household contents L Property $2,500 YY Property $270,000 E Property (inc in unit trust value) $0 KK Property VIC (subject to a life estate) 1/3 interest $84,416 XD Pty Ltd (as at 30/06/2015) $84,169 Interest in SS (incl in XD Pty Ltd) $0 Funds held in Ms Z’s bank account property belonging to SS withdrawn in financial year ending 30 June 2016 $0 Ms Danell Unit Trust $44,030 SS (calculated at $300 per week from 1 July 2014 to 15 August 2016, being 110 weeks) $0 XD Pty Ltd & FX Pty Ltd ATF FX Trust T/A SS ABN … $0 Ford motor vehicle $4,000 Household contents rental property $2,000 Bankwest Account #...04 $481 Bankwest Account #...95 (closed) $0 ANZ Account #...18 $90 ANZ Etrade Account #...56 $11 ANZ Cheque Account #...06 included in value of XD Pty Ltd $0 Director’s Loan owing from XD Pty Ltd (as at 30/06/2015) $194,915 Legal Fees $493,134 Funds held in Gordon & Barry Trust Account $28,743 Superannuation – TPS Super Member #...31 $32,675 Less ANZ Loan Account #...59 (Variable secured on L Property) paid out on sale of LL Property $0 ANZ Loan Account #...74 (Secured on E Property) (included in value of trust) $0 ANZ Loan Account #...27 at 8/3/16 (YY Property) -$139,187 Westpac Mastercard #...47 ($1,068.04 as at 12 August 2016 but ought by excluded as post separation expenditure) $0 Loan to Ms U Danell -$25,000 Loan to Ms BB -$47,000 TOTAL (NET) 1,029,977
Accordingly, excluding the L property from the balance sheet, the wife would hold net assets in the sum of $1 029 977, which would exceed her entitlement by $210 091.40.
As identified by the Court, the husband currently retains or has had the benefit of net assets in the sum of $336 499 (set out in Table 2. above). The husband would therefore require a payment from the wife in the sum of $210 091.40.
I am of the view that, should the wife be unable to comply with an order that she transfer the YY property to the husband and pay him the sum of $263 569 within three months from the date of the Orders, that an appropriate course of action is to sell the L property. However, as neither party sought a sale of the L property in their proposed orders, I will order that the parties each submit a Minute of Order setting out their proposals for the sale of the L property and the division of the proceeds of sale after associated costs and payment to the husband in the sum of $210 091.40, in the event a sale becomes necessary, to reflect the equal adjustment of the parties’ property interests which I have determined to be the appropriate adjustment in this matter.
Otherwise, in accordance with both parties’ proposals, the parties’ superannuation interests will remain untouched by these Orders.
In the event that the parties are unable to reach agreement as to what items of household contents or furniture are currently in their possession or control, an order will be made facilitating the sale of that item or items and dividing the proceeds equally between the parties.
I regard the proposed adjustment of the parties’ property interests as appropriate in circumstances where:
a)The wife is the primary carer of the children. She has and will continue to incur significant expenses in providing for their needs for a number of years to come. She currently resides with the children in rental accommodation and it is appropriate she be given first option of acquiring the L property.
b)Requiring the YY property to be sold as part of these orders would involve delay and potentially prejudice the wife’s ability to raise sufficient funds to pay the husband for his interest in the L property. Accordingly it is appropriate that, instead, the YY property be transferred to the husband without encumbrance. The husband is then free to continue to utilise the property as an investment property or sell the property to raise additional funds.
c)The husband will receive a payment of $263 569 in addition to the YY property. This amount is available to be utilised by the husband as he sees fit including utilising a portion for a deposit on another dwelling.
d)While the wife has a greater earning capacity than the husband he nonetheless has qualifications and extensive experience as a health professional. There is no reason why the husband should not exploit his undoubted earning capacity in the future. If he does so, he will have the ability to enjoy a reasonable standard of living. He will also have the ability to contribute to his superannuation with a view to providing some security for him post retirement.
The Independent Children’s Lawyer’s Costs
There was no dispute concerning the reasonableness of the ICL’s costs. The ICL provided invaluable assistance to the Court in this matter. It is noted that, subject to extending the implementation time, in large part, I have accepted the recommendations of the ICL in respect to the parenting orders that I have made. The ICL’s submissions were appropriately focussed on the best interests of the parties’ children and there is no reason why each party should not equally share the cost of the ICL.
Accordingly, I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding five hundred and three (503) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 16 March 2017.
Associate:
Date: 16 March 2017
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