SCUDERI & SCUDERI
[2015] FamCA 656
•11 August 2015
FAMILY COURT OF AUSTRALIA
| SCUDERI & SCUDERI | [2015] FamCA 656 |
| FAMILY LAW – PROPERTY SETTLEMENT – undefended hearing – considerations of the implications of an undefended hearing – whether it is just and equitable to make the order – where the balance of the assets and liabilities of the parties would appear to be uncontroversial – where a global approach is adopted – where there is consideration of the parties contributions. |
FAMILY LAW – CHILDREN – equal shared parental responsibility – where there is a report of the family consultant – where there is a psychiatric assessment of the wife – where the children live with the mother – where the children spend substantial and significant time with the father – where the time spend with the father is initially supervised – consideration of whether the orders sought by each of the parties are reasonably practicable – where there are allegations of family violence but no evidence to reasonably support the contention.
| Allesch v Maunz (2000) 203 CLR 172 |
Family Law Act 1975 (Cth), s 60B(1) , 60B(2) , s 60CC, s 60CC(2), s 60CC(3), s 61C, s 61D, 61DA, s 62G(2), 65DAA, 65DAA(1), s 65DAA(2), s 65DAA(5), s 65DAC, s 69ZW, s 75(2), s 79, s 79(2), s79(4).
| APPLICANT: | Mr Scuderi |
| RESPONDENT: | Ms Scuderi |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | ADC | 2087 | of | 2012 |
| DATE DELIVERED: | 11 August 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 27 July 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Dickson |
| SOLICITOR FOR THE APPLICANT: | Benedict Battiste Solicitor |
| COUNSEL FOR THE RESPONDENT: | No appearance Litigant in Person |
| SOLICITOR FOR THE RESPONDENT: |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Read |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
PROPERTY
In full and final settlement of any claim that either party may have against the other for settlement of property and alteration of interests in property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”):-
(a)That the husband shall retain as his sole and absolute property free of any claim whatsoever by the wife:-
(i)any monies standing to his sole credit in any financial institution;
(ii)all insurance and life assurance policies currently in his name together with any entitlement or expectations of superannuation benefits;
(iii)his superannuation benefits;
(iv)the items of furniture and household goods currently in his possession; and
(v)any other item of property whether real or person of whatsoever nature and from whatsoever source currently in his possession;
(b)That the wife shall retain as her sole and absolute property free of any claim whatsoever by the husband:-
(i)any motor vehicles currently in her possession;
(ii)B Street, Suburb C, South Australia, …;
(iii)any monies standing to her sole credit in any financial institution;
(iv)all insurance and life assurance policies currently in her name together with any entitlement or expectations of superannuation benefits;
(v)her superannuation benefits; and
(vi)the items of furniture and household goods currently in her possession;
(vii)any other item of property whether real or personal of whatsoever nature and from whatsoever source currently in her possession;
(c)That save and except for the enforcement of the orders herein, that each party do hereby release and discharge the other from any liability for any monetary claim, declaration of trust or claim for equitable interest that either now one may have against the other with respect to any property either now or hereafter owned by either of them;
(d)That henceforth each party shall discharge without calling upon the other to contribute thereto any debts contracted for or by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
CHILDREN
That the parties do have equal shared parental responsibility for the children A born ... 2001 (A), T born … 2003 (T) and M born … 2005 (M) (“the children”).
That until further order the children live with the mother.
That until further order the children live with the father as follows:-
Concluding on 9 September 2015
(a)Commencing 19 August 2015 to 9 September 2015 inclusive, on Wednesday afternoon of each school week from the conclusion of school until 7pm to include an evening meal, with handover at the commencement of the father’s time from school and with the father to return the children to the mother’s home at the conclusion of his time PROVIDED THAT his time with the children be supervised by Ms I.
(b)Commencing 12 September 2015 to 21 November 2015 inclusive, from 10am to 4pm each Saturday with the father collect the children from inside the main entrance of David Jones Department Store, D Shopping Centre and to return the children to the mother’s home at the conclusion thereof.
(c)That as and from 28 November 2015, from the conclusion of school on Friday to 5pm on Saturday and each alternate weekend thereafter, with the father to return the children to the mother’s home at the conclusion thereof.
(d)By telephone with the children for a maximum of 30 minutes on Wednesday of each week at 5.30pm, with the father to telephone the mother’s mobile telephone number namely … or such other number as the mother may supply PROVIDED that the said telephone communication is to take place in the absence of the mother.
That pursuant to s 62G(2) of the Act, the parties and the children shall attend upon and at the direction of a Family Consultant nominated and appointed by the Director of Child Dispute Services of the Adelaide Registry for the purpose of the preparation of a family report, not to be commenced until 25 January 2016 and to be completed by 22 April 2016.
That the parties be restrained from changing the children’s school from Hendon Primary or enrolling them in any other school without the written consent of the other.
That the mother be restrained and an injunction granted restraining her from removing the children from their school on the day that they are to spend time with the father pursuant to these orders SAVE AND EXCEPT in circumstances where a child is ill and on this occasion the mother shall provide the father with a copy of a medical certificate within seven (7) days certifying that the child was too unwell to attend time with the father HOWEVER should one child be ill THEN the other children are to attend with the father.
That the mother is to notify the father if any of the children are not at school on the day that he is to collect them and whether or not she has been able to provide a medical certificate for that child on that day.
That the mother shall ensure that the children attend school on all days that attendance is required unless she has a medical certificate for illness for the child or children and if so she is to provide a copy of that medical certificate to the father within seven (7) days of receiving the said certificate.
That the children attend the E Program and complete their attendance within twelve (12) months of the date of this order, with the mother to ensure their attendance at same and to provide the father with a copy of the said completion certificate upon the conclusion of the program within fourteen (14) days of receipt of same.
The mother do forthwith authorise all medical health professionals, school counsellors, school teachers, the school principal and any extra-curricular activities supervisors to speak with the father as to the progress, care, welfare and development of the said children and each of them and he shall be entitled to receive copies of school notices, reports, photographs and newsletters.
The father be at liberty to attend events at the children’s school to which parents are normally invited AND in particular, to participate in events such as parent/teacher interviews (PROVIDED he arranges a time at which the mother will not be in attendance and he is to provide her with notice of same by SMS message), school assemblies, school events, school days and lessons where there is advocated and promoted parent participation PROVIDING that the father provides the mother with twenty four (24) hours’ notice of same by pre-paid post or SMS message.
That if deemed necessary and requested by the Independent Children’s Lawyer, the mother will make all necessary arrangements and give all proper authorities to enable the Independent Children’s Lawyer to attend upon the children at their respective schools and if necessary speak to the school principal of each of the children’s schools to explain these orders and to provide the children with the father’s address, contact telephone number and other relevant information.
That the proceedings be listed for mention at 9.15am on 20 April 2016.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Scuderi & Scuderi 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 ADELAIDE |
FILE NUMBER: ADC 2087 of 2012
| Mr Scuderi |
Applicant
And
| Ms Scuderi |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Initiating Application filed 5 March 2015, the husband seeks parenting orders in respect of A born in 2001 (“A”), T born in 2003 (“T”) and M born in 2005 (“M”) (“the children”). Additionally, the husband also seeks orders for settlement of property.
Ms Scuderi (“the wife”) filed a Response on 16 July 2012. Following repeated attempts to seek the wife’s involvement in the proceedings, for the reasons delivered that day, the wife’s Response was dismissed on 30 June 2015. The wife did attend at the start of the proceedings but then was granted leave to withdraw.
Without seeking to repeat the reasons that underpin my decision, it is useful to set out in short compass the background to the proceedings being heard as an undefended matter.
On 13 May 2014, a Registrar of this Court ordered that pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”) a family consultant be nominated to prepare a report in respect of matters relating to the care, welfare and development of the children.
The proceedings were also referred to a list of matters awaiting a trial allocation and following the release of the report of the family consultant on 17 September 2014, the proceedings were listed before me on 5 December 2014 as a first day hearing.
The husband was represented by his solicitor, the mother by counsel and the court had the advantage of counsel appearing for the Independent Children’s Lawyer (“ICL”).
The orders reflect that all applications for final orders were listed for hearing on 27 July 2015 as a five day primary listing. Trial directions were made which required the applicant husband to file any amended application together with trial affidavits on or before 4pm on 27 February 2015 and that thereafter the respondent wife was to file any amended response and her trial affidavit material by 4pm on 29 May 2015. The matter was listed for mention before me on 17 June 2015 to confirm and consider the extent to which the parties have complied with the trial direction orders.
Relevant to the parenting issues, the parties also reached an interim agreement on 5 December 2014 that provided for the children to spend supervised time with the husband for six visits at a children’s contact service and with the parties to do all things necessary to register with the said service.
Orders were also made that the children communicate with the husband by telephone on one occasion each week and he was at liberty to forward to the children by post on no more than two occasions in each month, letters or cards with the wife at liberty to read same.
Each of the parties were required to engage in and obtain an assessment as to their alcohol and drug use. The wife was to obtain a Medicare mental health plan for the three children in order to seek a referral to either of two named psychologist or such other psychologist as may be agreed. The focus of the attendance by the children on a psychologist is the subject of paragraph 8 of the order:-
That such appointments with the children shall be for the purpose of assisting the children in the processing and integrating their experiences and feelings about the reintroduction of the father into their lives initially by telephone and correspondence and eventually through the children’s contact service process.
The wife also agreed to be the subject of a psychiatric assessment to be undertaken at the instruction and cost of the ICL with the nominated psychiatrist to have the advantage of a copy of the family report as prepared by the family consultant dated 11 September 2014.
There was no appearance by the wife on 17 June 2015. Counsel for the husband made an oral application that the court consider striking out the wife’s Response filed 16 July 2012 with the inevitable consequence that the Amended Initiating Application of the husband filed 5 March 2015 would proceed to hearing on an undefended basis.
It was observed that whilst a few days late, the husband had filed an Amended Initiating Application and trial affidavit on 5 March 2015. Leave was also sought to file and serve a further trial affidavit by 29 June 2015.
I declined to hear and determine the oral application made on behalf of the husband, but considered that the wife should have further opportunity to engage in the proceedings. I adjourned further consideration to 30 June 2015 and ordered that a copy of orders made 17 June 2015 be forwarded by post to the wife’s address at B Street, Suburb C Park, South Australia.
The wife did not appear on the adjourned date namely 30 June 2015. The husband was represented by counsel as was the ICL. The husband renewed his application for the dismissal of the wife’s Response filed 16 July 2012. As further support for the application the husband tendered a copy of a letter forwarded by the husband’s solicitors to the wife dated 26 June 2015 reminding her of the hearing and orders made on 5 December 2014 together with the orders and my remarks on 17 June 2015. The letter refers to the hearing on 30 June 2015 and sets out the potential adverse consequence to the wife if she takes no action namely, the dismissal of her Response and that the proceedings may well be heard as an undefended matter.
Following submissions, I made the following orders:
(1)The Response of the wife filed 16 July 2012 be dismissed.
(2)Subject to any application made by the respondent wife, proceedings will be conducted on an undefended basis.
There appears to be no good reason for the wife’s failure to comply with orders and her non-attendance at the various hearings including the substantive part of the trial.
I am also satisfied that every opportunity has been provided to the wife to involve herself in the proceedings and for reasons that are best known only to her, she has chosen not to do so.
There being no application by the wife to either adjourn or be heard, the hearing proceeded on an undefended basis. Judgment was reserved following submissions made on behalf of the husband and the ICL.
BACKGROUND
The husband was born in 1969 and is currently 46 years of age. The wife was born in 1977 and is currently 38 years of age. The parties met in late 2000 and were married in 2001.
At the commencement of their relationship the wife was employed in a city business where she remained so employed until early 2001 when she was four months pregnant with A. Thereafter she remained generally at home looking after the children until early 2011 when she returned to part-time employment.
The husband was employed as a driver at the time of marriage but after three years changed his occupation to that of tradesman. He is currently in fulltime employment with an organisation and is in receipt of a modest income. It appears that his employment is secure and likely to be ongoing.
For the first three years of the marriage the parties lived with the husband’s parents, then moving to a property at Suburb F owned by the wife’s father.
In 2005 the parties purchased a house property at Suburb G for $172,000 with the full amount of the purchase price borrowed from Homestart using the subject property and a unit that the wife had purchased prior to the marriage.
In October 2010 upon the death of the husband’s father, he received an inheritance of $80,000 which was placed in a term deposit in the joint names of the parties.
The Suburb G property was sold in 2011 and from the modest net proceeds of sale a further sum of $20,000 was added to the inheritance bringing the total on term deposit to $100,000. The husband alleges that by 2 May 2014 the term deposit had been reduced by $47,800 in respect of arrears of interest and mortgage fees on the Suburb C unit together with legal fees of $11,455. A further $30,000 was withdrawn by the husband towards his legal fees of which $15,283.20 remained in his lawyer’s trust account by 2 May 2014.
The parties have attempted to settle their differences in respect of property and notwithstanding the husband’s assertion of an agreement having been reached and to some extent implemented, I treat the evidence of the husband on the basis that the parties have not reached an agreed position and to the extent that the husband annexes a draft minute of order to his trial affidavit of 26 June 2015, I propose to rely upon the draft minute as an indication of the orders that the husband now seeks for the purpose of the proceedings.
The husband alleges that the parties had an unhappy relationship and it would appear probable that there was a high level of volatility in the interaction between them.
Ultimately, the husband says that the arguing and conduct of the wife made it intolerable for him to remain in the relationship and perhaps of greater concern was his observation that the children were a witness to the parental conflict. Accordingly, the parties separated in early January 2012 and have remained so since.
The unusual aspect of the history of the parties is that from Easter 2012, the husband did not see or spend time with the children until September 2014 which was the date of the family assessment conducted by the court appointed family consultant.
The husband alleges that soon after separation he made various attempts to communicate with the children. On each occasion he was rebuffed by the wife and he alleges that she was abusive and offensive towards him. He attests to having written and sent a couple of letters to the children in early 2012 but with no response.
He was successful in seeing the children at Easter 2012 and following an exchange of presents and Easter eggs he parted company with the wife and the children purportedly on good terms.
Proceedings for settlement of property were commenced on 4 June 2012. On 20 August 2012 the husband was interviewed by the police and charged with aggravated indecent assault on A. The particulars of the offence alleged that he had indecently assaulted his daughter at the Suburb H car park when the family came together at Easter 2012.
The charges were not proceeded with and a “nolle prosequi” was entered on 5 December 2013 bringing those proceedings to an end. It is in respect of the criminal proceedings that the husband withdrew money from the term deposit to pay his legal fees.
The husband’s contention is that he seeks to re-establish a relationship with the children and that he is able to provide a safe and appropriate environment for them to spend time with him. He also seeks to have more involvement in the curricular and extra-curricular activities undertaken by the children.
Of importance to him is the potential for the children to re-engage with his extended family. Following orders made on 5 December 2014 the husband contacted the named children’s contact service to register with the service. The contact service required the wife’s registration form to be completed before they could arrange supervised visits. The wife’s registration took place in or about February 2015. The husband attended the interview session on 31 March 2015 and notwithstanding that five separate interviews had been arranged for the wife, the process did not result in the husband spending time with the children. The first session was cancelled because the contact service interviewer was unwell, the wife did not attend on three occasions and on the fourth attended in the company of the children thereby necessitating the cancellation of that session.
Importantly, the husband sought to speak to the children as ordered on 5 December 2014. It was only on a relatively few occasions that the husband was successful in speaking to any of the children. The husband alleges that on 27 May 2015 he was able to speak to A but that after five minutes the wife interfered with the call. On 10 June 2015 he spoke to A and T for about 25 minutes.
He has managed to speak to the children for about 30 minutes each week at about 5.30pm on Wednesdays.
DOCUMENTS RELIED UPON
The father relies upon the following documents:
·Amended Initiating Application filed 5 March 2015
·Financial Statement of husband filed 4 June 2012
·Affidavit of husband filed 5 March 2015
·Affidavit of Ms I filed 5 March 2015
·Affidavit of husband filed 26 June 2015
There has been no evidence filed by or on behalf of the wife. The court is not able to receive any assistance for or on behalf of the wife in terms of parenting orders and property settlement.
ORDERS SOUGHT BY THE HUSBAND
The husband relies upon the orders sought in his Amended Initiating Application both in respect of property settlement (subject to the proposed orders in the case outline document) and children’s issues. By reference to the minute of order annexed to the husband’s trial affidavit of 26 June 2015 (as to property only), the only difference relates to the extent of the money currently being held in the husband’s solicitors trust account that he seeks to be transferred to the trust account of his previous solicitor presumably to discharge outstanding legal fees. In the minute of order the husband seeks $15,283.20 as opposed to $4,783.
Subject to the ancillary terms and conditions, the orders sought by the husband by way of settlement of property is that the monies remaining in his solicitors trust account should be transferred to the husband and then used to discharged his previous lawyer’s fees together with the further sum of $30,000 remaining in the Bank SA Joint Incentive Saver Account. The wife would receive the balance of the monies anticipated to be about $17,800 together with the retention by her of her unit at B Street, Suburb C subject to the refinance and discharge of the current mortgage secured over the said property in the joint names of the parties. The orders now sought reflect that the money held has been distributed by agreement.
By way of parenting orders, the husband seeks orders summarised as follows:
(1)That the parties have equal shared parental responsibility for the children.
(2)That the children live with the mother.
(3)That the children spend time with the father each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday.
(4)For one half of each of the school holidays.
(5)That he have the ability to communicate with the children by telephone each Wednesday.
(6)That the children spend specified time with each of the parties over Easter, Christmas, Mother’s Day and Father’s Day.
(7)That each of the parties have liberty to attend the children’s school and to obtain copies of school reports, letters, photographs and other notices.
(8)That the parties be at liberty to attend all school and sporting events to which parents would ordinarily be invited to attend.
(9)That each of the parties be advised by the other in the event of a medical emergency.
EVIDENCE OF HUSBAND
The husband complied with trial directions and accordingly the court has had the advantage of his affidavit material. In addition, he was available for cross examination but counsel for the ICL did not seek to exercise that opportunity.
I do not propose to repeat the matters set out in his trial affidavits but the gravamen of his evidence is that there is no reason other than being contrary that he should not spend significant and substantial time with the children. Any suggestion of reluctance on their part should be considered as a direct result and consequence of the wife’s alienating conduct. He denies any allegation that he was the perpetrator of domestic violence and in particular denies any allegation of indecent assault on the child A. The husband points to the inherent improbability that he would indecently assault his daughter in the presence of the wife in a car park where the family had come together for the express purpose of exchanging Easter eggs and gifts.
He also highlights what he says is the deliberate non-compliance by the wife of orders made 5 December 2014 put in place and with the consent of the parties in order to re-establish at an early opportunity his relationship with the children with the intention that it would thereafter be ongoing.
He relies significantly on the frequency and content of his telephone communication with the children and records:
22.When the telephone sessions started, all three daughters spoke together but after several sessions I spoke to each daughter individually for about 10 minutes each.
23.I usually ask each daughter about school, both lessons and sport and they engage openly about how they are going, however, when I asked about social activities outside school, none of them have much to say and I don’t push them with further questions.
24.I have noticed at the beginning of each phone session, each of my daughters sound reserved for the first minute or two but then speak more relaxed as time passes.
25.All calls have been left on speaker phone during contact time and the wife has been present and several times can be heard speaking in the background.
The orders of 5 December 2014 also required the parties to each undergo a drug and alcohol assessment with the appropriate agency. The husband relies upon the test results of a urine sample undertaken on 6 January 2015 which reported that nine classes of drugs and alcohol were not detected. Ultimately he attended an assessment process undertaken by Uniting Communities in June 2015.
The husband relies upon a financial statement filed 4 June 2012. It is demonstrably out of date. The Court is however is assisted by his description of his current financial circumstances at paragraph 43 of his trial affidavit which reveals the following:-
·That he owns no real estate.
·That he lives in rented accommodation at Suburb H Beach.
·That his rental commitment is in the sum of $260 per week.
·That he is employed as a tradesman.
·That he earns $1,155 per fortnight net.
·That he pays $100 per week by way of child support for the three children.
·That he has a salary sacrifice arrangement with his employer to the value of $95 per week for the use of a motor vehicle.
PROPERTY INTERESTS OF THE PARTIES
As set out in the draft minute of order attached to the husband’s trial affidavit of 26 June 2015 is his assessment of the property interests of the parties.
Importantly, it is the husband’s position that there should not be a splitting or flagging order in respect of the superannuation entitlements of each of the parties. Whilst the pool is modest, the proposal of the husband is that his superannuation entitlement should be treated as if it were property. Given the size of the pool and the negligible superannuation entitlement of the wife, it seems sensible to accede to the husband’s proposal given that in any event it is potentially advantageous to the wife.
Accordingly the assets and liabilities of the parties as follows:-
Assets
Funds held in the parties joint name at Bank SA Incentive Saver Account BSB 105-108 Account No …
$47,800
Funds held in the trust account of Benedict Battiste Solicitor
$15,283
Wife’s interest in B Street, Suburb C South Australia …
$180,000
MLC superannuation plan (husband)
$45,000
REST and Statewide Superannuation (wife)
$5,000
Motor vehicle (wife)
$5,000
Total
$298,083
Liabilities
Westpac Mortgage on Suburb C property
$68,000
Net Total
$230,083
EVIDENCE OF WIFE
The wife has not complied with trial directions and accordingly there is no affidavit material that has been filed on her behalf. As indicated, I am satisfied that the wife was aware of the proceedings but for reasons that are not immediately apparent or obvious, has determined not to participate in the trial.
I have given consideration to a range of cases that have regard to the fundamental principle of natural justice and the provision of an opportunity to a litigant to attend: see Allesch v Maunz (2000) 203 CLR 172, Sexton & Sexton [2012] FamCAFC 218 and Haydon & Bennett & Anor [2012] FamCAFC 89.
Notwithstanding the wife did not elect to participate in the proceedings or file any affidavit material that the Court is able to consider, I do not consider that this matter is dealt with appropriately by in effect considering that the dismissal of the wife’s Response enables orders that the husband seeks to be made by default.
The Full Court considered the implications of an undefended hearing in Lanceley & Lanceley (1994) FLC 92-491 at 81,104:-
Unlike some other jurisdictions, such a circumstances does not and cannot lead, in this Court, to a “judgment by default” in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief…
Similarly, in the earlier decision of McMahon & McMahon (1976) FLC 90-128 the Full Court (Ellis CJ, Pawley SJ and Ellis J) at 75,607 said:-
…where a court does proceed to deal with a matter as an undefended matter, it is still bound by the same general requirements as to proof as in a defended matter. This does not mean that a court necessarily has to insist on detailed evidence, make elaborate findings and give reasoned decisions in undefended matters. This would cause too onerous a burden on the court, and clog up already crowded lists. Nevertheless it must be satisfied that the evidence supports its findings and orders.
Whilst the commences in Lanceley (supra) and McMahon (supra) are in the context of property settlements, the principle is of perhaps greater importance in an application for parenting orders.
The wife’s absence does not entitle the husband to have orders made in his favour by default. I am obliged to provide adequate and proper reasons so that a legislative pathway can be followed and that is apparent how I have exercised and discharged the obligation to give proper consideration to the provisions of Part VII of the Family Law Act 1975 (Cth).
DISCOVERY AND DISCLOSURE
The wife has not participated in the proceedings. It is difficult for the husband to gain a complete understanding of the wife’s activities and her current circumstances.
In Weir & Weir (1993) FLC 92-338, the Full Court said at 79,593:-
…once it has been established that there has been a deliberate non-disclosure… the court shall not be unduly cautious about making findings in favour of the innocent party…
the court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
In Orielo & Orielo (1985) FLC 91-653 (a decision of Emery, Fogarty and Murray JJ), the Full Court held at 80,256:-
We consider that there is a clear obligation on a party to proceedings in this court to make a full and frank disclosure of all the relevant financial circumstances.
Accordingly, I am able to take a robust approach to the evidence and to place significant reliance on the evidence as presented by the husband.
LEGAL PRINCIPLES TO BE APPLIED
Before I am able to consider any alteration or adjustment to the interests of the parties to their separate property, I must be satisfied by regard to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) that it would be just and equitable to embark upon such an exercise.
In Stanford v Stanford (2012) 247 CLR 108 the majority held:
[35]It will be recalled that section 79(2) provides that
“the court shall not make an order under this section unless it is satisfied that, in all the circumstances is just and equitable to make the order”. Section 79(4) describes matters that must be taken into account in considering what order (if any) should be made under the section. The requirement of the two subsections are not to be conflated. In every case in which a property settlement order under s79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
[36]The expression “just and equitable” is a qualitative description of a conclusion reached after examination of the range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
Importantly, the Court found:
[39]Whether it is just and equitable to make the order is not to be answered by assuming the parties rights to all interest in marital property are or should be different from those that then exist.
In Bevan & Bevan [2014] FamCAFC 19 the majority of the Full Court said (in relation the previously quoted paragraph in Stanford:
[70]In our experience the circumstances as described in the paragraph above encapsulates the vast majority of cases. Hence the reminder in Stanford of the pivotal role of section 79(2) is unlikely to have any impact in most cases although it will serve as a reminder to Trial Judges that the pre-condition to making any order is a finding that it is just and equitable to do so.
Accordingly, three steps are to be considered:-
(1)that the court needs to consider the existing property interests of the parties and to identify those interests;
(2)the direction must be exercised in accordance with legal principles and not in respect of any assumption that the parties interests should be different from those as determined by common law equity; and
(3)section 79(2) cannot be conflated by reference only to matters of contribution in section 79(4).
LEGAL AND EQUITABLE INTERESTS OF THE PARTIES
The period of marriage is about 11 years. There are three children of the relationship.
The parties have a mutual commitment towards each other together with the three children and in the circumstances presented to the court, it would be unconscionable to suggest that the parties do not uphold a significant and substantial and equitable interest in the property of the other.
I am satisfied that having regard to s 79(2) of the Act, it is just and equitable to embark upon a consideration of whether to adjust their respective property interests.
PROPERTY OF THE PARTIES
As set out in the schedule of the interests of the parties in their separate and joint property, the Suburb C property has been included at $180,000. There is scant evidence as to the value of the property and whilst it is a modest sum there has not been any valuation undertaken.
On 16 July 2012, the wife filed a financial statement. Unfortunately neither of the parties have seen fit to file updated financial statements although to some extent there is some further information from the husband in his trial affidavit material.
A perusal of the wife’s financial statement lists the Suburb C property at $176,000. Noting that the figure was considered appropriate by the wife for inclusion in her financial statement and given that now more than three years has elapsed since the filing of that document, it is reasonable to find that the property may not have significantly altered in its value and if anything may well be at a higher value. The husband’s position is that the Suburb C unit should remain with the wife at the nominated sum of $180,000.
The wife is aware of the proceedings and has determined that she will take no part in them. I am entitled to take a robust approach providing a determination as to the value to be attributed to the property interest of a party is reasonable. In the current circumstances of this case I consider it reasonable to bring to account the Suburb C property at the value as nominated by the husband and with some significant support from the wife via her financial statement.
The balance of the assets and liabilities of the parties would appear to be uncontroversial and adopting a global approach, a summary of their assets and liabilities at least as at the date of separation, is a gross total of assets including superannuation of $298,093 and a mortgage liability of $68,000 with a net total of $230,093.
As discussed, the husband’s case is that the wife should retain her interest in the Suburb C property, her motor vehicle (of modest value) and her superannuation interest with REST and Statewide.
The focus therefore is as to the division of money held in a Bank SA joint account and in the husband’s solicitors trust account.
CONTRIBUTION
As at the date of commencement of marriage the husband was possessed of little or no assets whereas the wife retained an interest in the Suburb C unit. There is no evidence about the value of the wife’s interest other than an assertion by the husband that she had equity of about $10,000.
Whilst that needs to be brought to account, the uncertainty surrounding the extent of the wife’s interest if any, the length of marriage and the counter-veiling contributions of each of the parties thereafter would not suggest that significant weight can or should be given to the wife’s contribution made at the commencement of marriage.
The sum of $10,000 representing her equity in the Suburb C property is a concession by the husband and upon first consideration, of benefit to the wife. The difficulty is that there is no evidence to suggest that her equity was not represented by a greater sum.
The fact that the wife does not challenge the husband’s assertion cannot be seen to give more weight to his position in the absence of any evidence at all.
The position is different in respect of the inheritance monies received from the husband’s late father’s estate in March 2011. The position is a little unclear as to how those funds were ultimately dispersed. The husband’s affidavit asserts that he received $80,000 but that those monies were soon utilised firstly, to pay out arrears of the Suburb C unit and then legal expenses of the parties. I am not able to reconcile the extent of the expenditure but as at 2 May 2014 there remained in the husband’s solicitors trust account $15,283.20. Some of the money has been used for the arrears of mortgage in respect of the Suburb C property but I suspect that a substantial sum has been used for the parties separate legal fees but in particular to assist the husband in his defence of criminal proceedings brought against him alleging that he had indecently assaulted A in April 2012.
To the extent that the inheritance has been used in a way that can be identified, it is likely that if those monies had not been received there may well have been significant consequences for the wife in her ability to retain the Suburb C unit and that other assets may have needed to be sold or disposed of in order to support the legal fees of each of the parties. Obviously the sum remaining in the solicitors trust account is directly represented in the current pool.
The parties were both in paid employment during the course of the marriage but the husband concedes that from an early stage during the pregnancy of their first child the wife remained at home and undertook the role of homemaker. She returned to the workforce on a part-time basis in about 2011 but clearly her work arrangements were predicated on the need to properly supervise and care for the children whilst the husband was in full-time employment.
There is no complaint or criticism by the husband in respect of the arrangements within the household and it can be reasonably assumed that the contributions both financial and non-financial made by each of the parties during the course of the marriage were equal.
Following the parties separation in January 2012, the children have remained in the primary care of the wife. It cannot be said that the husband did not attempt to see and spend time with the children. Whilst he complains that the wife took active steps to prevent him pursuing a relationship with them, nonetheless for whatever reason it is the wife who has looked after the children to the date of trial. The husband does pay child support as assessed and whilst he is not entitled to bring to account the proper payment of child support by way of contribution, inferentially it is of assistance to the wife and it reduces the extent of her financial obligation in respect of their care.
On balance and bringing to account the respective contributions of the parties both at the commencement of cohabitation, during the period of the marriage, but with particular focus on the inherited money received by the husband and the care of the children following separation, there should be an adjustment of 55/45 per cent in favour of the husband to reflect the greater weight to be given to his overall contribution.
SECTION 75(2) FACTORS
The lack of evidence presented by or in respect of the wife’s current circumstances presents the court with an inherent difficulty in the consideration and assessment of weight to be given to the separate factors pursuant to s 79(2) of the Act.
The husband is in full-time employment with an income of $45,700 per annum. It is a modest income in circumstances where $100 per week is paid by way of child support assessment.
The wife’s current employment circumstances are unknown. It is reasonable to assume that she may be utilising her trade skills, but to what extent is not known.
I am entitled to bring to account that the wife’s previous employment history is likely to enable her to derive some income or at least to have the opportunity to do so, but whether there are any counter-veiling factors, cannot be known.
On the orders as sought by the husband, the children will remain in the wife’s primary care. I am uncertain as to what issues, if any, may affect the wife’s health, but it is likely that the most relevant factor will be the wife’s care of the children and the significant financial obligations that will be imposed upon her as a result.
I am obliged not just to consider the effect of any order I make by reference to a percentage adjustment, but must place the outcome into context namely, if an adjustment is made to bring to account appropriate s 75(2) factors, then it must be meaningful and not notional.
I consider that significant weight should be given to the wife’s ongoing obligation to provide for the children who will remain in her primary care and as such I consider an adjustment of 15 per cent in her favour represents and appropriate sum in the circumstances of this case and as against a relatively modest pool.
I propose therefore to adjust the property as between the parties on the basis of 60/40 in favour of the husband.
CONCLUSION AS TO PROPERTY
The net property of the parties is $230,093. At 60 per cent the wife is entitled to a total settlement sum of $138,055. The wife however retains the following:-
Suburb C Unit $180,000
Motor vehicle $ 5,000
Superannuation entitlement $ 5,000
Total $190,000
Less mortgage $ 68,000
Balance $122,000
The wife therefore needs to receive $16,055 from the Bank SA joint account. The balance of the account together with monies held in the husband’s solicitors trust account can then be transferred to the husband.
I consider that given the wife has received about $17,800, I propose to make no further adjustment.
PARENTAL RESPONSIBILITY
The husband seeks an order that the parties have equal shared parental responsibility. It is tangentially discussed in the Case Outline document filed on behalf of the husband, that the uncertainty as to whether the wife will comply with any order that would require the children to spend time with him and the previous history, is suggestive that equal shared parental responsibility is not necessarily a certain or appropriate outcome.
It is not the father’s position at this stage to seek an order that the children reside primarily in his care. Were it to be his position, it would then be appropriate to consider the issue of parental responsibility.
Similarly, the non-existent relationship between the parties and their demonstrable inability to communicate at any level in respect of issues that impact upon the children would raise the possibility that the wife should have the sole parental responsibility given that the children are likely to primarily reside with her. The difficulty with that proposition, if made, is that it becomes a self-fulfilling prophesy by sheer dint and consequence of the cavalier behaviour of the wife. It must be reinforced that it is the wife’s apparent decision not to assist the court in presenting evidence that would enable a proper exploration of issues that impact directly on the children.
In the absence of a submission to the contrary, but also taking into account the position adopted by the husband, I propose to make orders that the parties have the equal shared parental responsibility for the children. A present all decisions are apparently made by the wife taking into account the observations of the husband in respect of the constancy and consistency of the children attending school and the observations of their teachers who would seem to be in their best interests that both parties are involved in the important decision making that affects their education, health and welfare.
Section 61C confers parental responsibility for a child on the parent of a child whilst s 61D limits that parental responsibility to the extent that any order of a court expressly or necessarily provides.
The Full Court in Goode & Goode (2006) FLC 93-286, referring to parental responsibility pursuant to s 61C held that:
[37]…where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force.
In Goode (supra) the Full Court highlighted an important distinction to be drawn between s 61C and an order for equal share parental responsibility at [39]:
[39]We therefore consider it clear that there is a difference between parental responsibility which exists as a result of s 61C and an order for shared parental responsibility, which has the effect as set out in s 65DAC. In the former, the parties may still be together or may be separated. There will be no court order in effect and the parties will exercise the responsibility either independently or jointly. Once the court has made an order allocating parental responsibility between two or more people, including an order for equal share parental responsibility, the major decisions for the long term care and welfare of the children must be made jointly, unless the court otherwise provides.
REPORT OF FAMILY CONSULTANT
Pursuant to an order made, the parties attended upon a family consultant to assist the court in determining future parenting arrangements for the three children.
The family consultant published her report on 8 December 2014 and whilst the preparation of the report was pursuant to s 62G(2), nonetheless the ICL adopts the report as part of her case.
It would appear that the family consultant had the opportunity of perusing the entirety of the court file up to and including documents and orders made on 28 August 2014.
Additionally, the family consultant had the opportunity to interview the children, the parties and to observe interaction. Assistance was also obtained by telephone consultation with the principal, student counsellor and the children’s teachers at the primary school to which they attend.
It is an important observation that the family consultant was not aware of the orders sought by the husband in his Amended Initiating Application filed 5 March 2015.
As is not uncommon, the investigation and considerations given by the family consultant were extensive and of broad compass.
The family consultant adequately sets out the background history and the current arrangements which in September 2014 saw the children reside with the wife in the Suburb C unit. It is noted that the three children currently share a bedroom and at that time the wife was not employed but was in a “non-residential relationship” with a person that she had recently met.
The three children were attending a local primary school where they had been since mid-2013. The wife was supported by the maternal grandmother who resides in J Town, a distance of about 97 kilometres from Suburb C.
The husband was supported by extended family and friends.
At the time of the assessment, the husband sought an order for equal shared parental responsibility, for the children to reside with the wife and spend time with him initially supervised, then progressing to day time unsupervised time ultimately with overnight unsupervised time being the eventual goal.
In terms of the husband’s position to the family consultant, it was significantly more constrained and limited than the orders now being sought.
As will ultimately be seen, the recommendations of the family consultant suffer by the process being limited to the husband’s position of a graduated increase in time.
At the time of the assessment, the husband had not seen the children for about two and a half years. He was recorded as being nervous and between interviews had obviously consumed an alcoholic beverage. It was not the observation of the family consultant that the husband was in any way affected by the consumption of alcohol. The husband argued that he was concerned as to the crammed conditions in which the children were living and that the wife’s presentation was one highlighted by paranoia and irrational and detrimental behaviour.
The husband gave a history of the wife having been involved in a previous highly abusive relationship and whether or not it was connected, she had spent time in a psychiatric facility.
This apparently did not bode well for the relationship and there was conflict between the parties, their friends and family and of greater importance, the children’s school community.
He denied the claims of the wife that he was a perpetrator of domestic violence, that he was volatile or that he had in any way attempted to choke the mother, assault her or members of her family and in particular, the allegation of indecent sexual assault on the child A. Any suggestion or allegation that he was sexually inappropriate with the children was specifically denied.
The wife’s presentation to the family consultant was anxious but willing. She strongly argued that the children had been traumatised by the previous sexual abuse perpetrated by the husband and that they wanted to spend no time with him. In short, they were frightened of the husband. The wife agreed that the relationship with the husband had been highly conflicted. She blamed his controlling and coercive behaviour and referred to his ability to inflict mental abuse on her with “intermittent episodes of physical violence, with the children present”.
She referred to the paternal grandfather as “a pig who gambled and never showered”.
At the instigation of the husband, the parties did attend counselling but it was demonstrably unsuccessful.
Both parties disclosed a history of drug use. The wife lost her licence in 2013 for driving under the influence and then again for a second six month period in 2013 but denied any long term excessive alcohol consumption.
During the relationship the wife ultimately agreed that she had “dabbled in drugs” on a weekly basis.
At paragraph 49 the family consultant records the wife’s summary of sexual abuse allegations allegedly perpetrated by the husband:
The [wife] gave an account of sexual abuse allegations largely consistent with her affidavit material. She alleged [the father] showed little sexual interest in her and preferred to masturbate causing relationship issues. He masturbated in the shower with [A] as an infant in the bath, inappropriately stretched the naked baby’s legs back making them cry, on two occasions bounced [M] on his lap with an erection, played a game with [T] where their tongues touched, tickled [T] between her legs, and played a game with all three children where they pretended to be babies and he changed their nappies. On one occasion he locked the children outside and had [M] alone in the house and played a game. [M] demonstrated sexualised behaviour such as straddling a male friend. Furthermore, he once showed an interest in a friend’s child at a party.
The wife agreed that the children had attended three separate primary schools due to various house moves, but they were currently happy and settled in their current primary school.
It is recorded at paragraph 53:-
[The mother] perceived the children were doing well at home without contact with their father. [A] had made friends and settled into her new school, and was developing into a moody teenager. [T] had similarly settled into her new school and had made one good friend. She easily became emotional and had anger issues. She was conflicted in regards to her father, and on occasion reported missing him. [M] was described as a timid child, who was also settled at school, doing well academically and had made lots of friends. She was observed to only express and interest in [the father] when being disciplined by her.
She made it clear to the family consultant that the children did not want to spend time with the husband, that she would not support such an outcome and importantly, would not agree to there being any time between the husband and the children even at a children’s contact centre.
During the subsequent telephone interview, the wife told the family consultant that T was being difficult and was apparently missing her maternal uncle but this was potentially difficult because an allegation had been made that the wife had assaulted her brother.
The observations of the family consultant of the children upon their arrival with the wife and the maternal grandmother were not encouraging. They presented as “highly nervous and very tentative”.
In interview A presented as “reserved but articulate and [a] bright young girl”. She complained of having now attended her fourth primary school and the difficulty that the constant moves had made in terms of her friends. She was clearly aware of the difficulties within her own household. Her mother was sad on occasions and other than their maternal grandmother, they do not see their maternal grandfather, aunts or uncles due to “Mum had a fight with her father and her brother”.
A expressed fear of her father, but in particular because she considered that she was responsible for the time that they had previously spent with him being stopped.
At paragraph 65 the observations of A as to the domestic violence within the household are recorded:
In regards to life prior to parental separation, she recalled an argument where her father hit her mother. [T] and [M] were distressed at the time and she had to look after them ([A] was observed to become highly distressed when recalling being responsible for her sisters). On this occasion, her father slapped her mother’s face. On previous occasions she had seen him spit at her. Both parents were angry and screaming and throwing things at each other, but her mother was the only one hurt and acted in self-defence. She was nine out of ten worried during this fight.
The child’s view of the father was that he was mean but that her mother was protective of her.
T presented as a shy and reserved child. When asked as to her understanding as to why she was at court, she said it was “because her father was a bad person, and she felt really sad to know that”,“he did something to [A] and me…he tickled me inappropriately” (she showed the report writer somewhere around the middle of her thighs, between her knee and groin area). She reflected, “it was kind of gross”. She estimated this occurred two times. She asked him to stop. On one occasion he rolled on top of her while he was tucking her into bed and then rolled off. This was all she could recall.
Like her older sister, T also remembered her parents fighting. She observed one occasion when her father appeared to be strangling her mother and on one occasion the father apparently threw a work boot at her and her sisters and threatened them with a belt. The child also reported that on occasion “her mother got very angry with her and her sisters and screamed. Sometimes she is sad and sometimes grumpy at them all”. Her overall position was that her father worried her.
M reported that “life prior to parental separation was happier than her current life”. She was concerned that she might accidentally bump into her father and remembers an occasion when he saw them in the street, yelled out to them and the children ran away.
Whilst she did not have any clear recollection of adverse conduct by the father, she clearly has adopted the concerns of her older sister A and considered that she was the most concerned about them seeing their father.
At first the children did not wish to meet their father. They disclosed to the family consultant that their reluctance was because they did not feel safe, rather than any anxiety arising from the length of time that had elapsed since they last saw him.
The following paragraph provides an appropriate summary of the interaction between the children and their father:
[82][The father] entered the room and the girls were all huddled on the couch, with arms linked and looked scared. The father stood in front of the children and then bent down to their level and started to cry. He told them he loved and missed them. All three girls became overwhelmed with emotion and cried. [T] was the most emotional and sobbed. The report writer asked the girls if they were ok and why they were so distressed. [T] disclosed “because we have missed him”, and continued to be overwhelmed. [A] and then [M] reported feeling the same as [T]. This was repeated on a number of occasions.
The interaction was the most demonstrably appropriate. Notwithstanding that they hadn’t seen their father for some time, it was reasonable that they would be necessarily anxious. The observation of the family consultant is that after about ten minutes the girls were observed to become more relaxed.
Importantly, the father was observed to be appropriate in respect of his presentation, language and interaction, but it was clear that the children and the father were all overwhelmed by the interaction.
After the observed interaction had concluded, the children confirmed to the family consultant that they had missed their father and in particular A became distressed because she considered that “it was her fault her sisters missed out on time with their father”. T and M hugged her and reassured her not to feel bad.
The girls all reported that they would wish to maintain contact with their father and they initially agreed to letters and were open to spending time with him at a children’s contact service.
The following is recorded at paragraph 92:-
The report writer left the room and on her return the maternal grandmother requested the report writer to meet with [A], with the maternal grandmother also present. During this meeting [A] disclosed the following:-
She felt pressured to see her father by the report writer, she did not miss him but rather was afraid of him, she only said she missed him because she was afraid and when he kissed her goodbye she felt uncomfortable. The grandmother then informed the report writer, “he broke her trust at Easter, that’s why”.
In the presence of the children the wife was agitated and it is recorded that she was clearly annoyed at the children for their report that they had missed spending time with their father. The family consultant noted that the wife’s agitation escalated and she said, “this is bullshit…missing him…seeing a counsellor…it is not going to happen”.
Distressingly, the children were anxious, distressed and were watching their mother while she ordered them out of the room and into the Court lift.
So extreme were the observations of the family consultant in respect of the mother’s conduct, that the family consultant made a notification to the Child Abuse Report Line.
The principal and student counsellor from the children’s current school were interviewed by telephone.
There were occasions when the children were not at school without explanation. On other occasions it was observed that the mother had arrived at the school in a clearly intoxicated state and that a mandatory notification had been made. From January 2014 to September 2014, M had been absent 35 days with little or no explanation. T had been absent 26 days with illness and family reasons given and A had been absent on 3 days.
The teachers of the children considered the children generally to be bright and well-motivated but were concerned as to their attendance record. It was considered by M’s teacher that she had been negatively impacted by 35 days away from school for reasons that were not adequately explained.
There was also a report by a teacher that at a parent/teacher interview the wife appeared to be struggling to stay awake.
The subpoenaed material from Families SA at about the time of the April Easter 2012 incident considered that the allegation of inappropriate sexual touching by A was credible.
The issue for the family consultant concerned an evaluation of whether the husband did present as a risk to the children. The wife believes the children are at risk of significant harm in the husband’s care, the husband denies the wife’s allegations. For his part, the husband alleges that the wife suffers from poor mental health and her conduct and lack of stability resulting in the children changing schools on three occasions and having various different places of residence together with the introduction by the wife of various temporary male partners is not in their interests.
Little weight can be placed on the interviews and preliminary valuations of Families SA. The Department chose to take no further action and accordingly the issue remains a matter of evidence. The difficulty is that none exists because of the wife’s trenchant refusal to engage in the proceedings.
It is also noteworthy that it was based upon the initial assessment of Families SA that the husband’s time with the children was recommended to be supervised contact only. He has not seen the children since that assessment. No criminal proceedings have been brought against him and Child Protection Services did not interview the children at that time or indeed at any other time.
The report of T as to the husband’s inappropriate tickling of her is noted as being inconsistent with that as given to Families SA. T was clearly a conflicted child and the wife’s presentation has not made for an easy assessment or understanding of the complex issues as between the parties and the children.
The difficulty presented to the family consultant is that against the backdrop of the husband’s argument that the wife’s allegations are completely fabricated and that she suffers from significant and serious mental health issues, the wife’s presentation at the assessment and interview was consistent and to some extent corroborative of the matters raised by the husband.
Of the two, the husband presented as “more consistent” than the wife but it was noted the use of alcohol on this occasion “to settle his nerves” lacked insight. The relationship between the parties had as its feature ongoing and significant family violence perpetrated by one against the mother. There was also likely to have been substantial drug and alcohol use and to some extent the opinion of the family consultant was that the parties tended to minimise the impact of their poor lifestyle presentation on the children.
The children’s teachers also reported that the children were very private and it is inferred that they were protective of their home life.
Of greatest moment however is the clear inconsistency in the asserted position of the wife that the children were fearful of their father and did not want to see him and their clear conduct and beneficial presentation when they came into contact with each other after an absence of two and a half years.
The wife was observed to be angered by the report of the family consultant (and the children) that they had enjoyed seeing their father and had “missed him” and it is likely that the wife and the maternal grandmother placed in appropriate pressure and influence on A to attempt to qualify the observations of the family consultant by explaining that A was only pretending to enjoy seeing the father again.
The summary of the family consultant is set out at paragraph 131:
If the court were to find that sexual abuse is not likely to have occurred and that the mother does have paranoid tendencies, then her display of behaviour in front of the children is assessed as emotional abuse. Further, in this event, one would conclude the children are aligned to their mother to ensure their survival. This places the children in an intolerable position, caught in the centre of adult conflict, fearful of being rejected by their mother and isolated from their father and extended family. If the court were to find that there are reasonable grounds to suspect the mother’s allegations have substance, then while her response in front of the children continued to be highly inappropriate, it would seem her behaviour is motivated by being appropriately protective. In either case, it is the report writer’s assessment the children would benefit from an opportunity to process and integrate their experiences and feelings with a skilled therapist.
The recommendations of the family consultant is that the parents should have equal shared parental responsibility with the children residing with the wife. The wife should undergo a psychiatric assessment, there should be weekly telephone time between the husband and the children and there should be supervised time for a limited duration at a children’s contact centre.
It is now uncontroversial that the wife has been resistive to all but allowing the children to speak to their father by telephone.
The clear difficulty is that there is no evidence to assist the court in determining whether it would be in the best interests of the children to spend time with him in terms of the orders that he now seeks in circumstances where it is her clear view that by doing so the children may be placed in an intolerable position simply arising from the conduct possibly inappropriately so, by the wife.
PSYCHIATRIC ASSESSMENT OF WIFE
Following an order made on 5 December 2014, arrangements were made by the ICL for the wife to undergo a psychiatric assessment.
The nominated psychiatrist published his report on 5 February 2015. The report is one of the annexures to the affidavit of the ICL filed 16 February 2015.
By way of background information, the psychiatrist was provided with copies of the court documents as at July 2012, a Notice of Child Abuse filed by the wife on 27 August 2012, a copy of the s 69ZW Report dated 15 November 2012 and various Families SA and Centacare documents. Importantly, the psychiatrist had the opportunity to consider the Family Report.
The report records a history given by the wife which focusses on a significantly violent and controlling relationship immediately leading up to the commencement of her relationship with the husband. It was revealed by the wife that A was a difficult child and considerations were given as to whether the wife might be suffering from post-natal depression.
She referred to the husband’s marijuana consumption and considers that as a result he became “quite unmotivated”.
She also described occasions when the husband would hurt the children by stretching their legs apart until they cried. She also referred to an occasion involving M at age two when the husband rocked the child on his lap and groin thereby gaining an erection.
She spoke of family violence and again the attempt of the parties to gain assistance from counselling.
What is not conceded by the wife is that on occasion she acted aggressively both towards the husband and the children. She minimised her drug history and use of marijuana and in particular did not concede that she drank alcohol to excess.
By way of mental state examination, the psychiatrist found that the wife was detached from emotions and whilst she may present as “evasive”, it was his opinion that her presentation may well be influenced by her history of domestic and family violence.
In summary, she presented as a person who may well have stopped defending herself simply because of her being subjugated to the control and will of her former partners.
By way of summary and assessment, it was not considered that she showed any significant sign of dysfunction. There were no adverse findings made in terms of her ability to be a competent parent but ultimately it was not for the report writer to judge the accuracy or veracity of allegations made by the wife against the husband.
Other than confirming that the wife does not appear to suffer from a mental illness, the report is of scant assistance. It is noted that notwithstanding the wife has conceded she was admitted to a psychiatric facility, the hospital notes were not obtained and it is difficult to place much weight on a psychiatric assessment undertaken with limited information and opportunity to properly assess the wife’s mental state.
ISSUES AND CONSIDERATIONS
As indicated and notwithstanding that the matter has proceeded upon the Amended Initiating Application of the husband and his affidavit material, I do not consider that parenting issues should be determined by default.
I am obliged to consider the provisions of Part VII of the Act with the overarching consideration that orders made must be in the best interests of the children and as a paramount consideration.
The husband’s position pursuant to the orders that he seeks in the Amended Application and mirrored in the Case Outline document prepared by his counsel is that the parties should have the equal shared parental responsibility for the children, that they should live primarily with the wife but should spend significant and substantial time with him.
The difficulty in respect of that approach is that at the commencement of any orders made, he would not have seen the children for now more than three years save and except for the observed interaction and the weekly telephone calls.
Nonetheless, I have already determined that the parties should have equal shared parental responsibility.
As such, a consideration of s 65DAA(2) of the Act requires me to consider whether the orders sought by each of the parties are reasonably practicable.
The Act provides assistance in the determination of “reasonably practicable” in terms of the provisions of s 65DAA(5) namely:-
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve the difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
I propose to adopt the following approach:-
·Give consideration to the proposals put by each of the parties as they were identified and presented to the court.
·Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2) having regard to the provisions of s 60CC(2) in order to determine what is in the child’s best interests.
·Have regard to primary considerations under s 60CC(2) namely, the benefits to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.
The additional considerations are set out in s 60CC(3).
The evidence adduced in respect of the particular consideration pursuant to s 60CC(2) and (3) are to be considered and if more or less weight is to be given to one or more of the matters then this must be the subject of a delineation of comment.
Section 61DA requires the court to consider whether to apply the presumption of equal shared parental responsibility by having appropriate regard to the matters as set out in s 61DA which would rebut the presumption if a parent or person living with the child has engaged in:-
·abuse of the child or another child, (who at the time was a member of the parents’ family) (or that other persons’ family);or
·family violence.
In this case, the presumption applies and is not rebutted and accordingly s 65DAA required the court to consider whether there should be an order for equal time or if not substantial and significant time. In the circumstances of this case, the husband does not seek equal time but does press for significant and substantial time.
The test is whether the order would be in the best interests of the child and is reasonably practicable. Section 60CC is to be utilised in order to determine the question about best interests and the issue of whether an order for substantial and significant time would be reasonably practicable is to be determined by reference to the provisions of s 65DAA. There will of necessity be some overlap and in terms of assessing whether a proposed order is reasonably practicable, the decision of MRR v GR (2010) 240 CLR 461 at 467 is helpful:-
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in section 61DA(1) is not determinative of the questions arising under section 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
PROPOSALS OF PARTIES
The husband’s proposal is that effectively forthwith upon the making of the orders he seeks the children would commence to spend significant and substantial time with him.
There is nothing before the court that sets out the wife’s proposal. I am therefore obliged to consider the practical effect of the orders that the husband seeks namely, that the children would spend time with him each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Tuesday together with one half of the school holidays and on other special occasions throughout the year.
The position of the ICL is that the children should live with the mother but spend increasing time with the father on a graduated basis. Initially the children should spend a few hours with the father after school on one occasion per week, with such time to be supervised by a person appointed by the Court or as may be agreed between the parties. It is not proposed that there be any better provision of time to be spent with the children with reliance upon the parties hopefully reaching a more resilient outcome. The ICL considers that the mother should be restrained from removing the children on the day that they are to spend time with the father.
The mother is to facilitate a proper exchange of information in respect of the children and the father should be at liberty to attend school based functions to which parents are ordinarily invited to attend. It is not proposed that there would be any review of the ongoing arrangements irrespective of whether the interaction is one of benefit or detriment to the children. For his part, whilst the father seeks expansive orders he appropriately conceded that a more realistic expectation is for his time with the children to commence from a low base and gradually increase as he re-establishes their trust.
The difficulty in this case is the lack of assistance that the wife has provided to enable a proper determination of whether the orders sought are “reasonably practicable”.
I am clearly of the view that on the current evidence there is difficulty between the parties in terms of their ability to communicate and resolve any differences that might arise. Their ability to talk with each other about the children is limited. It must be said that notwithstanding the proposition of the husband it must be conceded that there is no evidence as to the impact of the orders sought on the children.
It may be the case (as is considered by the husband) that the only impediment to a resumption of a proper relationship with the children is the adverse influence of the wife. The husband may well be correct in that assumption, but it is nonetheless the reality and however unfortunate it may be that there has been a hiatus in the relationship between the husband and the children for a period now more than three years, that is nonetheless the reality.
It is encouraging that the husband has kept in touch with the children by his weekly telephone communication, but that is qualitatively different to spending time with the children and on his orders, for extended periods.
Even on the husband’s case, but with significant corroboration and reinforcement by considering the content of the family report and psychiatric assessment, there is a real possibility that the wife will persist in her alienating behaviour and place the children in an “intolerable position”.
That must be offset by the advantage that is likely to enure to the children by resuming a relationship with the husband and the extended paternal family.
The difficulty is that they are not matters of abstract speculation but rather require to have a foundation in evidence.
It is not controversial that orders recently made for the husband to spend time with the children at a contact service have been the subject of active resistance and opposition by the wife. It is not even a matter of guile or prevarication on her part but rather an example of her clear refusal to abide by an order that does not meet with her favour.
The family consultant was not prepared to venture further than orders that would see supervised time recommencing and then upon the preparation of a report of that observed time, other orders may present themselves.
There would seem to be clear and unequivocal basis for making orders that provide for a resumption of time between the children and their father but with certain conditions, but the real question is whether it could be considered that the orders the husband seeks are reasonably practicable.
CONSIDERATIONS PURSUANT TO SECTION 60CC
Section 60CC(2)(a)(b)
I consider that the evidence entitles me to conclude that there is benefit to these children in having a meaningful relationship with both of their parents but in particular the father. Clearly there has been little effective time spent with the children, but their reaction to him in the observed interaction process as conducted by the family consultant is significant and instructive. To the extent that A qualified her joy and relief at seeing her father again by suggesting that she was simply pretending to be pleased, is demonstrably false. The real concern is that the child’s presentation potentially corroborates the father’s allegation that the mother and the maternal grandmother may well be relentless in their opposition to the father resuming a relationship.
I am not satisfied that as at the date of the children’s presentation to the family consultant it is a bridge too far for the children to resume a meaningful and beneficial relationship with their father.
Whilst it is the mother’s position that the father presents as a physical and/or psychological risk to the children, I find no evidence which would support that contention. I have no misgivings that if given an appropriate opportunity, the father would exercise a high level of care for the children. The same cannot be said for the psychological harm suffered by the children as perpetrated by the mother in terms of her overt and alienating behaviour.
It is not the case that there is an easy and ready remedy to that conduct. It is specifically because of the uncertainty of the very real effect on the children of the mother’s behaviour that requires me to pause and consider whether final orders as opposed to interim orders should be made. That decision rests heavily upon the likely conduct of the mother and in circumstances of her lack of involvement in the proceedings, that assessment is problematic.
Section 60CC(3)(a)
I am uncertain as to the extent of the wishes of the children, if any, in terms of a relationship with their father. Any representation or presentation by the mother of the children expressing and adverse view of their father is rejected as inherently unreliable. The conduct of the mother is such that I would place little or no weight on the wishes of the children but rather place some significant confidence in the assessment of the family consultant having observed the children relate in a positive manner towards their father, particularly where they had not seen him for an extended period of time.
Section 60CC(3)(b)
At present the children have little experience of a relationship with their father. They have seen him on only one occasion during the observed interaction, but it is encouraging and of significant moment that he has maintained telephone contact with them.
Section 60CC(3)(c) (ca)
I accept that whilst the father has had little opportunity to participate in the lives of the children, it is not a decision of his own making. I accept that he seeks to re-establish a relationship with the children and as part of that to be involved in making decisions that impact upon major long term issues affecting the children. I propose to make an order that the parties have equal shared parental responsibility with the clear implication that it is no longer appropriate for the mother to consider that she alone is entitled to make major decisions that affect the children.
Section 60CC(3)(d)
The orders that the father seeks will have a dramatic effect on the children. They have not seen him for a significant period of time and the obvious change in circumstances will be that in addition to telephone communication, they will now spend actual time with him. Whilst it is likely that at first it will be unfamiliar and even difficult for the children, I consider that unless the mother seeks to derail the re-establishment of their relationship, the children will readily adapt. The potential for the children to be the subject of trenchant opposition from their mother and maternal grandmother is a matter that goes directly to the ability of the court to determine that the proposal of the father is reasonably practicable. There is no evidence that could support an order that would regulate the arrangements into the future and with some certainty of compliance and outcome.
Section 60CC(3)(e)
It is not suggested by the father that orders even at the most restrictive end of the spectrum will present him with undue practical difficulty or expense. There may well be issues that arise if the mother determines to interfere with the arrangements, but unless the parties are able to resolve their differences and determine an appropriate way forward for the children to resume a relationship with the father and spend time with him, future orders and further consideration by the court will be necessary.
Section 60CC(3)(f)
I am satisfied that to the extent of the orders that are being contemplated namely, limited time spent by the father with the children with some gradual increase to take place, will be within the capacity of the father and will be consistent with the emotional needs of the children arising out of their likely anxiety.
Section 60CC(3)(g)(h)(i)
Consideration of these subsections are unnecessary.
Section 60CC(3)(j)(k)
I have given close regard to the allegations of family violence and am satisfied that there is no evidence that would reasonably support any contention that the father has engaged in family violence or that the children are at risk in his care save as to the potential through emotional distress if the mother determines not to support the thrust of the orders sought.
Section 60CC(3)(l)(m)
In the circumstances of this case it is not necessary for me to consider these subsections.
CONCLUSION
Ultimately the father concedes that the orders sought by him in his amended application are an unrealistic expectation at this time. That sensible concession highlights the difficulty presented by the mother not participating in the proceedings in circumstances where there is insufficient evidence from the father and the family consultant which would give confidence to a decision that the father’s proposal is reasonably practicable.
I am satisfied that it is appropriate to make orders that would see the children resume a relationship with the father and that initially that time could be supervised by the father’s first cousin who gave evidence by affidavit filed 5 March 2015. The father’s cousin has the advantage of knowing the children and perhaps of greater importance, has two children who grew up with the subject children.
This witness was impressive but was frank that her assistance was limited to 7 September 2015 at which time she travels overseas for an extended period.
I consider that it would be appropriate to commence limited time between the father and the children subject to supervision until about the date of her departure whereupon the time spent should be unsupervised and following some further modest extension to overnight time, a further report should be undertaken with the matter returning to court to consider any agreement that the parties have reached or in the absence of agreement, the future conduct of the proceedings.
I make orders as appear at the commencement of these reasons.
I certify that the preceding two hundred and twenty six (226) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 August 2015.
Associate:
Date: 11 August 2015
0
7
11