SHERIF & SHERIF
[2012] FamCA 215
•5 April 2012
FAMILY COURT OF AUSTRALIA
| SHERIF & SHERIF | [2012] FamCA 215 |
| FAMILY LAW - CHILDREN – with whom a child shall spend time and communicate – parental responsibility - where the father has been diagnosed with a personality disorder – where father has been admitted to psychiatric care at a mental health unit on an involuntary basis – father burned down the former matrimonial home – father’s homicidal ideation in relation to the children - where the paternal grandmother assisted the father during trial as a McKenzie Friend – children’s relationships with father significant but not as valuable as their relationships with the mother – definition of family violence - father’s aggressive behaviour constitutes family violence under the Act – presumption of equal shared parental responsibility rebutted – father poses deficient attitude to the responsibilities of parenthood – expert evidence that father’s personality disorder impairs his ability to prioritise the needs of the children over his own – father’s aggressive behaviour unlikely to be controlled by a supervisor – best interests of children – finding father poses an unacceptable risk of psychological harm and physical harm to the children – injunction granted restraining parties from permitting children to spend time and communicate with father – sole parental responsibility allocated to mother FAMILY LAW - PROPERTY SETTLEMENT – determining matrimonial asset pool – parties have a small pool of assets with the principal asset being the former matrimonial home – father’s arson damage to the former matrimonial home diminished its value – insurer refused to indemnify the parties against the damage – repair cost is the measurement of the diminution in its value – repair cost notionally added-back to the balance sheet against father’s share - issue of whether debt of the parties to maternal grandfather created in 1999 should be included within the balance sheet as a matrimonial liability – debt was statute barred – debt not included as matrimonial liability FAMILY LAW - PROPERTY SETTLEMENT – contributions – adjustments – just & equitable orders - – treatment of maternal grandfather’s loan to mother as a contribution for which she is entitled to full measure – where mother had superior contribution during cohabitation and since separation – mother’s entitlement assessed at 60 per cent and father’s at 40 per cent – parties in good physical health – mother is in part-time employment with modest income – father receives carer’s allowance being a full-time carer of the paternal grandmother – father contemplates searching for employment at some stage in the future – father to retain superannuation interests of relatively modest value – father’s superannuation interests worth triple the mother’s superannuation interest – mother will receive little or no child support from the father for the remainder of the children’s minority – in cases where the net pool is relatively modest preferable to express a third stage adjustment as a lump sum rather than percentage – cash adjustment to mother of entirety of father’s share |
| Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE, 75, 79, 90MZD |
| Coghlan v Coghlan (2005) FLC 93-220 |
| APPLICANT: | Ms Sherif |
| RESPONDENT: | Mr Sherif |
| INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi |
| FILE NUMBER: | BRC | 11613 | of | 2010 |
| DATE DELIVERED: | 5 April 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 13, 14, & 15 March 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | N/A |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | N/A |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr T Bates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Krstina Wooi |
Orders
Parenting Orders
All former parenting orders relating to the following children (“the children”) are discharged:
(a) N, born … September 1999;
(b) B, born … October 2001; and
(c) R, born … December 2004.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The parties are restrained from causing or permitting the children to spend time or communicate with the father.
Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:
(a) The mother’s residence; and
(b) Any school attended by the children.
The mother shall present the children to the Independent Children’s Lawyer at a time and place nominated by the Independent Children’s Lawyer within 14 days of the date of these orders at which time the Independent Children’s Lawyer shall explain these orders to the children.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Property Adjustment Orders
The parties shall do all such acts and things and sign all such documents as may be necessary to list for sale by public auction the real property and improvements comprising Lot … on RP … County of …, Parish of …, being Title Reference …, and more commonly known as … T Street, Town A, Queensland, (“the property”).
For the purposes of implementation of Order 9 hereof:
(a)The solicitors chosen by the mother shall be the solicitors to act on the sale of the property for the parties.
(b)The property shall be listed by the parties for auction sale within 6 weeks of the date of these orders.
(c)The auctioneer shall be the auctioneer chosen by the mother.
(d)The reserve price shall be the reserve price nominated by the auctioneer.
(e)In the event that the property is not sold by auction, or private negotiation within a further 7 days, then the property shall be submitted to successive auctions within further 6 weeks periods until sold, otherwise on the same terms and conditions as applied to the first auction.
(f)The parties are restrained from charging, mortgaging, or otherwise further encumbering the property.
Upon completion of the sale of the realty pursuant to Orders 9 and 10 hereof the solicitors acting for the parties on the sale shall disburse the proceeds of sale as follows:
(a)Firstly, to pay all costs, commissions, and expenses of the sale and to pay any Council and water rates outstanding in respect of the property.
(b)Secondly, to discharge the mortgage registered over the property.
(c)Thirdly, to pay the balance then remaining to the mother.
In the event of any payment out to the parties by the insurer of the property in respect of the damage sustained to the property by fire on or about 23 November 2010, the mother is declared the sole legal and beneficial owner (as between the parties) of such insurance monies and the father shall do all such acts and things as may be necessary to assign or transfer to the mother his right, title and interest in such monies.
Unless otherwise provided:
(a)Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed in the possession of the superannuant.
(b)Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession and any debts in their respective sole names.
Miscellaneous Orders
Leave is granted to the mother to provide a sealed copy of these orders to the mortgagee of the property.
In the event of either party refusing or neglecting to sign within 7 days of a written request to do so any document necessary to implement the terms of these orders the Registrar of the Family Court of Australia at Newcastle is empowered to execute such documents on behalf of the parties pursuant to s.106A of the Family Law Act.
Any and all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sherif & Sherif 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 NEWCASTLE |
FILE NUMBER: BRC 11613 of 2010
| Ms Sherif |
Applicant
And
| Mr Sherif |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings dispute both the parenting orders that should be made for their children and the orders that should be made dividing their assets, liabilities, and financial resources.
The parties separated in August 2010 in acrimonious circumstances. The father burned down the former matrimonial home in November 2010 and the children have not seen the father since then, apart from a supervised visit in April 2011 which ended dramatically with the arrest of the father by police who were summoned to the scene.
The father was diagnosed with a personality disorder which affected his parenting capacity. The mother and Independent Children’s Lawyer both proposed that the mother have sole parental responsibility for the children and that they live with her. The Independent Children’s Lawyer and mother also contended the children should have no interaction with the father at all. Conversely, the father wanted the children to live with him and for them to only spend infrequent time with the mother.
The insurer declined indemnity for the arson damage to the former matrimonial home and, as a consequence of the diminution in the value of that property, the matrimonial pool of property is relatively small. The father entertained unrealistic notions as to the extent of his financial entitlement.
Short background
The parties began cohabitation in mid 2007, married in July 1998 and finally separated on 31 August 2010.
The three children of the marriage were born in 1999, 2001 and 2004. They are now aged 12, 10, and 7 years respectively.
The parties met and initially cohabited in NSW. They moved to Queensland in early 2005 and were resident in that state at the time of separation.
On separation the mother felt the need to depart the former matrimonial home alone without the children. The father refused to vacate the property and she had no alternate residence to accommodate herself and the children.[1]
[1] Mother’s affidavit, pars 6, 18, 21
The children remained living with the father at the former matrimonial home[2] and the father restricted the interaction between the children and the mother in the period immediately following separation.[3]
[2] Father’s affidavit, pars 12, 45
[3] Mother’s affidavit, pars 19-20, 22-39; Father’s affidavit, pars 28-33, 46
After the elapse of several weeks the father took the children to the mother on 22 October 2010 telling her she could have the children.[4] They have lived with her ever since. The father implied he left the children with the mother inadvertently rather than intentionally,[5] but I reject his evidence.
[4] Mother’s affidavit, par 41
[5] Father’s affidavit pars 69-71
There was a tense scene at the mother’s home on 22 October 2010. The father forced his way into the mother’s home and confronted the mother, causing her to call the police. The father ripped telecommunication wires from the wall to terminate her phone call to police. The children were distraught. The eldest child interceded and tried to punch the father. The father then hurriedly departed the scene before the arrival of police. That short summary accords with the father’s admissions.
After he arrived back at the former matrimonial home that evening the father ingested medications in an apparent suicide attempt. The police attended the former matrimonial home, arrested the father and admitted him to psychiatric care at a mental health unit on an involuntary basis. His involuntary treatment order was revoked several weeks later on 8 November 2010.[6]
[6] Exhibit F7
On 23 November 2010 the former matrimonial home was badly damaged by fire whilst the father was inside the home. The father was taken to hospital and treated in the Burns Unit for burns he suffered in the blaze. He was later transferred from the Burns Unit to the mental health unit for further psychiatric care, again on an involuntary basis. His fresh involuntary treatment order was revoked on 10 December 2010.[7]
[7] Exhibit F7
The mother commenced these proceedings by filing her Initiating Application on 10 December 2010.
The father was again admitted to the mental health unit on 18 December 2010 for several days. He was discharged on 21 December 2010.[8]
[8] Exhibits ICL4, ICL5, ICL6, ICL7, ICL8
Understandably, the mother was concerned about the father’s psychiatric stability and worried about what may happen if the children were in his unsupervised care. In her Application filed with the Court, she proposed interim orders for the children to only spend supervised time with the father.
The mother’s Application came before the Court on 7 March 2011. On that occasion the Court made interim orders with the consent of the parties for the children to communicate with the father by telephone twice per week. No order was made for the children to spend time with the father.
Pursuant to those orders, the children had telephone communication with the father until 26 April 2011. The mother ceased compliance with the interim orders, with reasonable excuse she contended, following another incident involving the father over the Easter holiday in April 2011.
Although there was no legal obligation to do so, the mother acceded to the father’s requests and made arrangements for the children to spend time with the father over the Easter weekend, supervised by family friends in Sydney.[9] The father had by then moved from Queensland to NSW.
[9] Mother’s affidavit, pars 50-55
The children flew to Sydney and stayed with the father at the home of the family friends. On the day the children were due to return to the mother in Queensland, the father refused to let them fly home, even though he knew they held return air tickets. He insisted that he drive them back to the mother in Queensland, intending to take several days to do so. That summary accords with the father’s version of the disagreement.
The police were summoned by the family friends, who directed the father to leave the property. Although he insisted on taking the children with him, he was precluded from doing so as he was arrested by police. The father admitted he resisted the arrest, for which he was charged. Although the charge was later proven, no conviction was recorded against the father. The children were spared exposure to some of the scene because they were taken away from the home by the family friends at the direction of police prior to the father’s arrest.
The mother experienced a serious loss of trust in the father as a consequence of his failure to adhere to the agreed arrangements for the children’s visit. Thereafter, the family friends declined to supervise the children with the father and the mother refused to allow the children to spend time with him again.[10] In addition, the mother ceased compliance with the existing orders for the children to have telephone communication with the father.[11]
[10] Mother’s affidavit, pars 57-59
[11] Father’s affidavit, pars 25-27
The parties and the children conferred with the Family Consultant on 21 June 2011, at which time the father caused another scene. The Family Consultant terminated the interviews and called the police for assistance. The Family Consultant furnished her Family Report on 25 June 2011, recommending against any interaction between the children and the father.
On 14 July 2011 the Court suspended the prior order providing for the children to communicate with the father by telephone. Consequently, from that point, there has been no order for the children to interact with the father in any way.
In about July 2011 the mother and children moved to live with the maternal grandfather in Sydney, where they remain.[12]
[12] Mother’s affidavit, pars 62, 64
The father now lives with the paternal grandmother in rental accommodation on the Central Coast of NSW.[13]
[13] Father’s affidavit, par 76
The former matrimonial home in Queensland remains damaged and vacant. The insurance claim to repair the damage has been rejected. The mortgagee has issued default notices in respect of the mortgaged loan and may soon foreclose. It is the only matrimonial asset of significance.[14]
[14] Mother’s affidavit, pars 84, 86-97
Proposal and primary evidence of the mother
The applicant mother began the trial pressing for the orders set out within her Amended Initiating Application filed on 11 November 2011.
In respect of parenting orders, the mother proposed that the children live with her and that she and the father have equal shared parental responsibility for them (Orders 1-2). The mother proposed intricate arrangements for the children to spend time with the father, which entailed the father undertaking psychiatric treatment for not less than six months and thereafter provision of written confirmation by the treating psychiatrist that the father poses “no risk to the emotional or physical safety” of the children or her before the children can begin to communicate and spend restricted supervised time with the father in a contact centre (Orders 4-9). Then, after the elapse of a further period of months, the mother proposed procurement of an updated Family Report to determine whether the children’s time with the father should be expanded and/or unsupervised (Order 10).
During final submissions the mother informed the Court of her abandonment of that parenting proposal and her adoption instead of the parenting orders proposed by the Independent Children’s Lawyer.
In respect of property adjustment orders, the mother proposed that the former matrimonial home be sold and the sale proceeds used to pay liabilities, including a large debt to the maternal grandfather, and the balance distributed to the parties in a 70/30 apportionment in her favour (Orders 13, 15-18). Otherwise, she proposed the parties retain the assets and liabilities in their current possession (Orders 14, 19).
In support of her proposals the mother relied upon:
a)Her affidavit filed on 17 February 2012;
b)Her financial statement filed on 6 February 2012;
c)The affidavit of Mr W filed on 9 February 2012.
The mother also sought to rely upon the evidence of Dr Z, contained within her affidavit filed on 1 February 2012, but was not permitted to do so. An application for Dr Z to give evidence by telephone was refused shortly before trial[15] and the witness did not attend the trial at Court. In the absence of her availability for cross-examination by the father her evidence was not fairly admissible.
[15] Order 2 made on 29 February 2012
Proposal and primary evidence of the father
The respondent father pressed for the orders set out within his Amended Response filed on 6 March 2012.
In respect of parenting orders, the father proposed that the parties have equal shared parental responsibility for the children. He also proposed that the children live with him (Order 1) and spend time with the mother every fourth weekend (Orders 2, 5), but not until she has “secured accommodation that is suitable for the children” (Order 17).
During final submissions the father altered his position somewhat. He proposed the children could spend every alternate weekend with the mother, and in the event the Court ordered that the children remain living with the mother, he proposed the children spend time with him each alternate weekend and for portions of the school holidays.
In respect of property adjustment orders, the father proposed that the former matrimonial home be sold and after payment of expenses the net sale proceeds be used to repay $20,000 to the father and the remainder divided equally between them (Orders 1-3). Otherwise, he proposed the parties retain chattels in their respective possession (Orders 4-5), subject to some specific exceptions (Orders 6-8). Finally, the father sought orders that the mother repay certain specific amounts of cash to him within 7 days (Orders 9-18).
In support of his proposals the father relied upon his affidavit and financial statement, both of which were filed on 6 March 2012.
The father made an application for the paternal grandmother to assist him during the trial as a “McKenzie friend” (see McKenzie v McKenzie (1970) 3 All ER 1034), which application was granted with the consent of the mother and Independent Children’s Lawyer.
The father was generally evasive when giving evidence. He often sought to rely upon quite technical distinctions, which tended to mislead rather than clarify. For example, he denied he had been admitted to a mental health unit at a particular point in time. Further probing revealed his concession of “attending” the mental health unit at that time. His denial of “admission” to the facility was because he had not been given any admission documents, notwithstanding his stay in the unit for several consecutive days. Another example was the father’s insistence that his treatment occurred only in a “mental health unit” and not a “psychiatric hospital”. Contrary to the father’s evidence, the tendered hospital records clearly demonstrated that the father was admitted for psychiatric evaluation and treatment, at least twice involuntarily, on three occasions in the months between October and December 2010.
I conclude that the impression of the father’s evasion when giving evidence was not gleaned unfairly in circumstances where he was uncharacteristically anxious. The single expert had formed the same impression of the father in the much more relaxed circumstances of inter-personal interview. The single expert reported evasion by the father[16] and told the father during cross-examination “you were quite evasive in the interview”. As an example, the father denied to the single expert having had any homicidal ideation in relation to the children but was forced to concede it when confronted with hospital records recording his admissions.[17]
[16] Single expert report, page 6
[17] Single expert report, pages 4, 9
When presented with a conflict between, on the one hand, the evidence of the father, and on the other, the evidence of any other witness or that contained within any document compiled from an apparently reliable and independent source, I prefer all other evidence over that of the father.
Proposal of independent children’s lawyer
The Independent Children’s Lawyer did not foreshadow any proposal at the outset. It was not until final submissions that the Independent Children’s Lawyer tendered a minute of the orders she proposed.[18] Her proposal was that the children live with the mother, who would have sole parental responsibility for them. Further, she proposed an injunction precluding the children from communicating or spending any time with the father.
[18] Exhibit ICL13
The Independent Children’s Lawyer relied upon the evidence of:
a)The single expert, Dr H, psychiatrist, contained within his report dated 17 October 2011; and
b)The Family Consultant, Ms J, contained within her Family Report dated 25 June 2011.
The single expert and Family Consultant were both cross-examined.
Parenting orders
Applicable legislative provisions
Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of the children – primary considerations (s 60CC(2))
The children have meaningful relationships with the mother which must be preserved.
Conversely, there is little evidence of the children having meaningful relationships with the father, even though he may still be loved by them.
The father stated the children enjoyed living with him immediately following separation. He also deposed that they enjoyed their short holiday with him in April 2011 and wanted to spend more time with him.[19] I accept that the children may have made such comments to the father and that he has a genuine belief in the truth of such statements, but that alone is too fragile a basis to conclude the children currently have meaningful relationships with him.
[19] Father’s affidavit, pars 38, 51
The father conceded the children may have expressed to the mother their unwillingness to see and speak with him, but he believed that was due to them being “upset and confused about what is happening”.[20]
[20] Father’s affidavit, pars 49-50
The children have probably been terrified by the father’s behaviour since separation. They were witness to the violent events on 22 October 2010 when the father forced his way into the mother’s residence to confront her, necessitating the summons of police. They were also aware that the father burned down the former matrimonial home, and probably also aware of the father’s hospitalisations in the months following separation.
The mother deposed that the children were petrified of the father following the incident in October 2010,[21] which evidence I accept.
[21] Mother’s affidavit, par 46
The children also witnessed the hostility of the father during the incident at Easter 2011 when he was challenged about his decision to retain the children and drive them back to Queensland instead of allowing them to catch their return flight. The police were also called to that incident and the children had to be ushered away from the home by friends prior to the father being arrested and subdued by capsicum spray.[22]
[22] Exhibit ICL11
The mother deposed that since that incident the children have all told her they do not wish to speak with the father.[23] I also accept that evidence. The father knows the children were “very upset” by that incident.[24]
[23] Mother’s affidavit, pars 58-59
[24] Family Report, par 48
The mother felt the need to have the children counselled about their distress and, while they have experienced some improvement, the children remain apprehensive about the father.[25]
[25] Mother’s affidavit, pars 68-70
Their apprehension of the father would have been exacerbated by events in June 2011 when the Family Consultant attempted to interview the parties and the children. The father refused to comply with the Family Consultant’s directions and searched for the children in another room, pounding on the door and yelling loudly when he found them. The children were petrified and fled to the furthest corner of the room. The mother was also seriously shaken. The father was unable to gain access to the room and left the building prior to arrival of police.[26]
[26] Family Report, pars 64-68
The children did not interact with the father on that occasion and, apart from the few days spent with him in supervised circumstances at Easter in 2011, have not spent time with the father since October 2010. They have not spoken to him by telephone since April 2011.
The children’s relationships with the father are still significant, but I conclude on the evidence that their relationships with him are not presently important or valuable in the way of their relationships with the mother.
The central issue in the parenting proceedings is whether an attempt should be made to rejuvenate their relationships with the father. The answer to that question essentially lies in the determination of whether the father continues to pose a risk of harm to the children.
The mother agrees the father has never abused the children. She also agrees the father has never physically struck her. However, the father has a violent propensity, conducting himself on numerous occasions in a manner which amounts to “family violence” as defined in the Act.
Obvious examples of the father’s violent conduct are forcing his way into the mother’s home, ripping telecommunication wires from the wall, barging past the mother’s partner, burning down the family home, resisting the arrest of police officers properly executing their duty, and behaving belligerently and angrily with other persons in authority such as the Family Consultant.
“Family violence” is generally defined to mean conduct directed towards property or a family member that causes any member of the family to reasonably fear or be apprehensive about his or her personal wellbeing or safety (s 4).
There can be no doubt that the children and the mother have experienced fear and apprehension for their safety as a consequence of the father’s behaviour towards the mother in their presence and as a consequence of his arson of their home.
Nor can there be any doubt that their fear and apprehension is and was reasonable. Any objective observer would conclude so. Although the mother and children may not have been aware of it at the time, the evidence adduced at trial proved the father previously admitted to possessing homicidal ideation about the children.[27] Perhaps the mother was aware of it because the father admitted he told her[28] and the mother was also contacted by a paternal family member in December 2010 and notified that the father may try to harm her or the children.[29] She requested hospital staff in December 2010 to inform her if the father absconded because she and the children were very frightened of him.[30] When the father was confronted by police alone and agitated in the burnt ruins of the former matrimonial home in December 2010, before he was admitted to the mental health unit for a third time, the father told police he would “take out anyone who gets in his way”.[31]
[27] Single expert report, pages 4, 9
[28] Single expert report, page 4
[29] Exhibit ICL4
[30] Exhibit ICL5
[31] Exhibit ICL12
Although the father’s aggressive behaviour towards the police and Family Consultant was not “family violence”, because they were not family members, such behaviour is equally inimical to responsible parenting and is an apt consideration pursuant to s 60CC(3) of the Act.
The father has not returned to psychiatric care since his release from the mental health unit on 21 December 2010. His general practitioner was notified of his discharge from a mental health service program in NSW in February 2011,[32] following his referral there by the Queensland medical authorities on his return to live in NSW.[33] However, given the subsequent incidents in April 2011 and June 2011, together with the opinions of the Family Consultant and single expert, which are later discussed, one could hardly be satisfied that the father no longer poses any risk of physical or psychological harm to the children.
[32] Exhibit F6
[33] Single expert report, page 5
On the contrary, I accept the submission of the Independent Children’s Lawyer that the father still does pose an unacceptable risk of harm to the children.
Best interests of the children – additional considerations (s 60CC(3),(4),(6))
The views of the children were not sought by the Family Consultant. She elected not to interview the children because of their distress about the father’s behaviour at the scheduled interviews.
I accept the evidence of the mother about the children’s expressed wishes not to have any interaction with the father.
The maternal grandfather and the mother’s partner live with the mother and children. There is little evidence as to the nature of the children’s relationships with the maternal grandfather and the mother’s partner, but in the absence of any dispute about it, I impute that they have warm relationships.
The father now lives with the paternal grandmother, for whom he cares on a full-time basis. There is no evidence as to the nature of the children’s relationships with the paternal grandmother. I impute that the children also enjoyed warm relationships with her prior to the matrimonial separation, but there is no evidence the children have had any interaction with her since that time. The children, like the father, have had no contact with the father’s siblings for years.[34]
[34] Single expert report, page 2
The evidence of the mother clearly showed she was willing and able to facilitate the relationships between the children and the father, but only on condition she can be satisfied that he poses no risk to them. Her attitude is not unreasonable.
Without obligation to do so, the mother acceded to the father’s requests in April 2011 to permit the children to spend supervised time with him, despite the freshness of her fears about the father arising from events which occurred only months before during October, November and December 2010.
She complied with the orders for the children to have telephone communication with the father until the father reneged on the agreement about the children’s return to her following the visit in April 2011. By then the father had completely betrayed her trust. Her subsequent failure to facilitate telephone communication between the children and the father was in part motivated by advice offered to her by the Family Consultant.[35]
[35] Family Report, par 69
The mother’s mind was not closed to future relationships between the children and the father. Leading up to the trial the mother proposed in her Amended Application a series of orders designed to prepare the father for interaction with the children by him undertaking a course of psychiatric treatment, followed by a period of months within which the children would spend only supervised time with him, followed by another review of the situation. Such a proposal of interim prolongation of the litigation was unwieldy, but having heard the evidence, the mother abandoned that idea and agreed with the Independent Children’s Lawyer that the risk posed by the father to the children is still unacceptably high.
Although the mother is presently unwilling to facilitate the children’s relationships with the father she is not susceptible to criticism for that attitude. Her opinion is consistent with those held by the Independent Children’s Lawyer, the Family Consultant and the single expert.
The Family Consultant conferred with the father in June 2011. The father was so obstreperous the session was aborted, the police were called and the mother and children were escorted to their car for safety reasons.[36] The Family Consultant said in cross-examination it was only the second time in 17 years of practice she had needed to summon police assistance. Within a short period of time the father sent a courteous text message to the Family Consultant confirming he would not be able to return for his appointment because he had been directed to leave the building.[37]
[36] Family Report, pars 9, 64-68
[37] Family Report, par 70
Surprisingly, even with several months to reflect upon his behaviour that day, the father later told the single expert that he would not have dealt with the Family Consultant any differently had he had the time over.[38]
[38] Single expert report, page 6
The Family Consultant described being “gravely troubled” by the father’s emotional state and his presentation. He minimised his past adverse psychiatric history and his mood vacillated quickly. The Family Consultant formed the view that the father posed “a potential risk to the mother and/or the children’s safety”. She recommended that there be orders for “no contact until a clearer understanding of the father’s health is obtained” and an injunction imposed precluding him from making contact with the mother and children.[39]
[39] Family Report, pars 76-78, 80, 83(d)
The Family Consultant elaborated her concerns about the father when she was cross-examined. She said he had no understanding about the adverse effect on the children of his passionate outbursts. He had no apparent capacity to reflect upon and accept responsibility for his poor behaviour, as evidenced by his courteous but unremorseful text message to her some 30 minutes following the incident at her rooms in June 2011.
When informed of the single expert’s opinion about the father’s personality disorder the Family Consultant adhered to her initial conclusion that it was not in the best interests of the children to have any “contact” with the father.
The single expert psychiatrist was retained pursuant to the Family Consultant’s recommendation for further investigation of the father’s mental health. The father conferred with the single expert in October 2011.
As he had done with the Family Consultant months before,[40] the father informed the single expert he believed he suffered from social phobia.[41] The single expert agreed with him,[42] and also considered the father had experienced a “Major Depressive Episode”.[43]
[40] Family Report, par 52
[41] Single expert report, page 5
[42] Single expert report, page 9
[43] Single expert report, page 10
Of more concern though was the single expert’s diagnosis of the father with “Cluster B Personality Disorder with borderline and narcissistic traits”.[44] Relevantly, elements of such a disorder are inter-personal exploitation, lack of empathy and arrogant behaviours and attitudes[45] – characteristics which actively impair a parent’s capacity to prioritise the interests of children over his or her own interests.
[44] Single expert report, page 10
[45] Single expert report, page 10
In light of that diagnosis, the single expert opined that the father continues to present a “significant risk of potential harm to his ex-wife or children”.[46] The single expert was concerned about the father’s impulsivity and unwillingness to accept responsibility for his behaviour.[47]
[46] Single expert report, page 10
[47] Single expert report, pages 10-11
The single expert assumed that there was no evidence to prove the father had engaged in any physical violence towards the mother or children and therefore concluded the risk he posed to the mother and children was “emotionally-based rather than one of physical violence”.[48] In cross-examination the single expert was tackled about the father’s aggressive behaviour on numerous occasions between October 2010 and June 2011 in response to which he conceded that violent conduct towards any person was indicative of some level of risk posed by the father.
[48] Single expert report, page 11
The single expert explained that the most successful form of therapy for the father’s personality disorder was likely to be Dialectical Behavioural Therapy, commonly known as DBT, which entailed a program of 12 months intensive group and individual psychotherapy. The single expert was unable to say whether the father was a suitable candidate for DBT, as he would need to be assessed for suitability. If suitable, then a course of DBT in the hands of a “skilful therapist” would likely ameliorate the father’s disorder and decrease the risk of harm posed by him to the children.
The passage of time since June 2011 without evidence of any further alarming incident involving the father was inconsequential. The single expert confirmed the father’s disorder would not dissolve or improve simply by effluxion of time. His depressive condition may fluctuate, but his personality disorder will remain constant without effective treatment.
Logically, the single expert and Family Consultant both said the father would not be able to change his behaviour unless he was motivated to do so. Regrettably, the father displayed no such motivation. In cross-examination he said he accepted the single expert’s diagnosis of the personality disorder, but then inconsistently stated in final submissions that the single expert had in fact made no diagnosis of him. During cross-examination the father refused to commit to his assessment for or participation in DBT. He said he was unable to presently commit without knowing more about the therapy. He was prepared to advert to advice, but would have to make up his own mind at some future time.
The father attempted to undermine the single expert’s opinion about his narcissism and impulsivity. He suggested to the single expert in cross-examination that in fact he may not have been acting impulsively, but rather deliberately and calmly, in the numerous instances of aggressive confrontation between October 2010 and June 2011. The single expert adhered to his opinion that the father’s impulsivity was unchecked, but said if the father had acted with pre-meditation on those occasions it would be just as worrying, albeit for a range of other reasons.
The facts are alarmingly simple. The father admitted he felt suicidal and homicidal in late 2010. His behaviour on occasions in 2011 was just as it was in late 2010. The father is no longer under the continuing care of any psychiatrist[49] and he has not undertaken any psychotherapy.[50] Without psychotherapy he has no chance of overcoming his personality disorder. The father’s self-report of no current suicidal ideation or homicidal ideation towards the children is not particularly reassuring.[51]
[49] Family Report, par 51
[50] Single expert report, page 5
[51] Single expert report, page 5
In the absence of evidence indicating any improvement in the father’s psychological function it must follow that the risk the father formerly posed to the children remains unabated. Supervision of the children with the father in the past failed to provide the bulwark against the father’s aggressive behaviour that had been anticipated. The father is too single-minded to be adequately controlled by a supervisor. He proved that with the family friends in April 2011 and the Family Consultant in June 2011. That is compelling evidence and carries considerable weight.
There is really no option but to preclude the children from spending time with the father whilst ever there is no evidence of considerable improvement in the father. The orders therefore impose an injunction restraining the parties from causing or permitting the children to spend time with the father.
Those orders replicate circumstances which have existed for the past 18 months, save for the single aborted occasion in April 2011. The children do not therefore need to adjust to any change in circumstances.
The injunction is extended to preclude any communication between the children and the father, consistently with the proposal of the Independent Children’s Lawyer and the mother. The single expert and Family Consultant both spoke of the father’s manipulative tendencies as an aspect of his character or personality disorder. The father is undoubtedly an intelligent person and the mother was understandably concerned about the risk of the father attempting to manipulate the children in telephone conversations or written correspondence. I accept the Independent Children’s Lawyer’s submissions that the father would likely manipulate and exploit any opportunity to curry favour with the children and distort their beliefs about the family dynamics.
The father’s deficient attitude to the responsibilities of parenthood is also demonstrated in other ways.
He would not concede the children had loving relationships with the mother. He denigrated her intelligence in a humiliating and contemptuous way.[52] Showing astonishing lack of insight, the father asserted he possessed “stability in temperament” and was more suited than the mother to “handle the emotional needs of the children”.[53] When it was posed to him in cross-examination that he had a “pretty poor opinion of the mother” he paused for a protracted period and said the question needed clarification. It did not. It was perfectly clear. He was impelled to concede he had little respect for the mother’s capabilities as a parent. He maintained that the children would be better off living with him.
[52] Father’s affidavit, pars 54-56
[53] Father’s affidavit, pars 56-57
The father failed to pay any money at all towards the children’s financial support after October 2010 when they began their residence with the mother. True it is that the mother did not seek it, but the father considered the absence of any request rendered his failure excusable. He did not appreciate that a responsible parent would have volunteered financial support to the mother.
The mother gave uncontradicted evidence that the children are all performing well at school and that they are happy with the current circumstances. Any orders which attempted to re-introduce the father into the lives of the children would likely be problematic and may well lead to the institution of further proceedings.
No other features of the evidence were contended to be influential in the outcome of the parenting dispute.
The parenting orders are final but never immutable. There is always a chance of the children recovering their relationships with the father, but that is not liable to happen until such time as the father is able to prove recognition and acceptance of his personality disorder, the motivation to rehabilitate himself, participation in remedial psychotherapy, and material change in his attitudes. The onus is on him.
Parenting orders
The perpetration of past family violence by the father means the presumption of equal shared parental responsibility does not apply (s 61DA(2)). Even if the presumption did apply it would be rebutted by the evidence, which ably proves the best interests of the children would not be served by the allocation of equal shared parental responsibility (s 61DA(4)). The parties are utterly estranged. They would be unable to rationally discuss matters of long-term importance to the children, as the Act would require of them (s 65DAC).
There can be no question that the mother must have sole parental responsibility for the children and that they should live with her. In such circumstances the Court is not mandated to consider the options of the children living for equal time with the parties or spending substantial and significant time with the father.
The circumstances under which the children spend time and communicate with the father are dictated by the children’s best interests. For the reasons already explained, the children should not spend time or communicate with the father. He poses an unacceptable risk of harm to them. The risk is principally of psychological harm, but given the relative recency of the father’s homicidal ideation about them and his unresolved psychological condition, the risk is also of physical harm.
The orders therefore restrain the parties from allowing the children to spend time or communicate with the father.
The orders also restrain the father from attending within a specified radius of the mother’s residence or the children’s schools, the locations of which are now known to the father.
An order is also made requiring the Independent Children’s Lawyer to explain the orders to the children. The orders replicate her parenting proposal and it would be more appropriate for her, independently from the family, to explain the final outcome of the proceedings to the children.
I am satisfied the parenting orders set out at the commencement of these reasons reflect the best interests of the children.
Property adjustment orders
Process of property adjustment
In determining the property adjustment orders that should be made between spouses the Court follows a recognised four-step process (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39]).
Firstly, the Court should identify and value the matrimonial pool of property, comprised of assets, liabilities and financial resources at the date of the hearing.
Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a)-(c) of the Act, and determine the contribution-based entitlements of each party as a percentage of the matrimonial pool of assets.
Thirdly, the Court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), and s 75(2), and determine the adjustment, if any, that should be made to the contribution based entitlements of the parties.
Finally, the Court should consider the effect of those findings and resolve what order is just and equitable in all the circumstances of the case.
The matrimonial pool
I find that the matrimonial pool of assets, liabilities and resources comprises the following:
| No. | Assets | Party | Value | Total |
| 1 | Town A property | Joint | 200,000[54] | |
| 2 | Holden car | H | 5,000[55] | |
| 3 | Bank accounts | H | 200[56] | |
| 4 | Chattels | H | 500[57] | |
| 5 | Toyota car | W | 4,000[58] | |
| 6 | Camper trailer | W | 3,000[59] | |
| 7 | Bank accounts | W | nil[60] | |
| 8 | Chattels | W | 2,000[61] | |
| Sub-total | 214,700 | 214,700 | ||
| Add-backs | ||||
| 9 | Diminished value of Town A property | H | 195,360[62] | |
| Sub-total | 195,360 | 410,060 | ||
| Liabilities | ||||
| 10 | Mortgage (Town A) | Joint | 126,898[63] | |
| 11 | Credit card debt | H | 29,705[64] | |
| 12 | Rates (Town A) | Joint | 1,118[65] | |
| Sub-total | 157,721 | 252,339 | ||
| Superannuation | ||||
| 13 | Super Fund 1 | H | 33,326[66] | |
| 14 | Super Fund 2 | H | 22,000 | |
| 15 | Super Fund 3 | W | 18,470[67] | |
| Sub-total | 73,796 | 326,135 | ||
| Net value | 326,135 |
[54] Mother’s affidavit, pars 83, 87-96; Mother’s financial statement, par 35
[55] Father’s financial statement, par 40
[56] Father’s financial statement, par 37
[57] Father’s financial statement, par 42
[58] Mother’s financial statement, par 40
[59] Mother’s financial statement, par 43
[60] Mother’s financial statement, par 37
[61] Mother’s financial statement, par 42
[62] Mother’s affidavit, par 90
[63] Mother’s affidavit, par 83
[64] Exhibit F9
[65] Mother’s affidavit, par 83
[66] Mother’s affidavit, par 83
[67] Mother’s affidavit, par 83
Some items comprising the balance sheet require clarification.
The father estimated the value of the former matrimonial home in its current state at $240,000[68] and the mortgage payout figure at $140,000.[69] There was no expert opinion evidence as to value, but the best evidence of value is the price for which the former matrimonial home can presently be sold. I accept the mother’s evidence that such value is $200,000. The father was prepared to accept the accuracy of the mother’s evidence about the current payout value of the mortgage in preference to his estimation.
[68] Father’s financial statement, par 35
[69] Father’s financial statement, par 46
The amount of the parties’ liability to the mortgagee may now be even greater because of action to foreclose on the mortgage.[70]
[70] Mother’s affidavit, par 96
The arson damage to the property is the only reason for its diminished value. The insurer refuses to indemnify the parties against the damage because its investigations led it to determine the damage was deliberately caused by the father.[71] The repair cost is the measurement of the diminution in its value. That sum is notionally added-back to the balance sheet against the father’s share of the property because, on the balance of probabilities, the damage was deliberately caused by the father (see Omacini v Omacini (2005) 33 Fam LR 134 at 144-145). The father accepted the add-back was appropriate if the Court concluded he was responsible for lighting the fire.
[71] Mother’s affidavit, par 89
The father conceded the fire which damaged the home was deliberately ignited, and further, that only he or an unknown intruder could have been the culprit. He was inside the house at the time but does not allege he saw any intruder within the home. The father alleged he was asleep inside the home at the time of the fire[72] and theorised an intruder was responsible for the fire because he later observed a damaged door lock.
[72] Father’s affidavit, par 75; Family Report, par 37
The evidence pointing to the father’s responsibility for the arson is, however, abundant.
The police who attended the scene of the arson on 23 November 2010 spoke to a man at the front door who loosely fits the description of the father. That person denied he was the father but refused to produce identification. The person refused the officers entry to the house and threatened to burn the house down. One officer then saw the man pick up a heavy jerry can before pushing the front door closed. Immediately thereafter the police saw a glow coming from within the house and they tried to force entry to the home. The police saw the same man run past them screaming with flames lapping at his feet.[73]
[73] Exhibit ICL9
It is hardly likely an intruder would have answered a knock at the front door and then conversed with police, and it was that same person who started the fire in the room adjacent to the front door. That person was probably the father.
The father was found at the back steps of the house covered in soot and conveyed by ambulance from the scene to the Burns Unit of the city hospital where his principal diagnosis was “inhalation injury, superficial and superficial-partial thickness burns to lower legs”. After treatment at the Burns Unit the father was transferred to the Mental Health Service.[74]
[74] Exhibit ICL2
The father was never charged with arson. The father asserted that is due to an insufficiency of evidence against him, but I do not accept the submission. It seems reasonably clear the prosecution did not proceed because the mother signed a document called “Withdrawal of Complaint” on 1 December 2010 stating she no longer wished to proceed with her complaint of arson against the father because she had “no desire to put [herself] or [exempt] through any court case that may result from a police investigation into the fire”.[75] The mother deposed that she was persuaded to sign that document by police.[76]
[75] Exhibit ICL10
[76] Mother’s affidavit, par 49
The wife submitted that a debt due by the parties to the maternal grandfather should be included within the balance sheet as a matrimonial liability. I accept the father’s submission that it should not.
In April 1999 the maternal grandfather transferred to the parties a parcel of real property in Sydney, subject to an unregistered mortgage in favour of the maternal grandfather. The purpose of the mortgage was to secure the debt of $151,000 allegedly owed by the parties to the maternal grandfather as consideration for the transfer of the property.[77] The parties sold that property and used the sale proceeds to purchase the former matrimonial home in Queensland in early 2005.[78]
[77] Mother’s affidavit, par 98, pages 230-231
[78] Mother’s affidavit, par 5
No mortgage was ever granted by the parties to the maternal grandfather over the former matrimonial home. When the Sydney property was sold the unregistered mortgage relating to that property expired and thereafter the loan was unsecured.
The mortgage covenants stipulated that the maternal grandfather could give the parties notice in writing at any time requiring repayment of the principal sum, exclusive of interest. No such notice was ever given prior to sale of the Sydney property. The maternal grandfather did not give any notice of his demand for repayment of the loan until October 2010.[79] By then the debt was statute-barred (see Young v Queensland Trustees Ltd (1958) 99 CLR 560 at 566; Ogilvie v Adams [1981] VR 1041 at 1043, 1045).
[79] Affidavit of Mr W, par 23
The mother deposed to the father’s superannuation interests in three separate funds.[80] The father conceded that his superannuation interest in Super Fund 4 was rolled into his Super Fund 2 interest, the total of which is now $22,000.[81]
[80] Mother’s affidavit, par 83
[81] Father’s financial statement, par 45
The father deposed to a credit card debt of $30,000.[82] The wife also deposed to a credit card debt of $24,047 at the approximate time of the matrimonial separation.[83] The parties confirmed they were referring to the same liability. It is a debt incurred in the father’s name and the current balance is $29,705.
[82] Father’s financial statement, par 51
[83] Mother’s affidavit, par 83
The Court is generally exhorted to treat the parties’ superannuation entitlements separately from assets, but that need not necessarily be the case (see Coghlan v Coghlan (2005) FLC 93-220 at [57]–[68]). The issue was not addressed by the mother, but the father submitted the superannuation interests should be treated as property. I see no reason to take a contradictory course. There was no evidence to suggest that the parties’ contributions to the accumulation of the superannuation interests should be differentiated from their contributions to other matrimonial assets.
Assessment of contributions
At the commencement of cohabitation the father contributed the furniture and contents within his rented apartment.[84] The father was not then in paid employment, but had managed to secure the release of an amount approximating $20,000 from his accumulated superannuation interest.[85] There is no evidence about the value of his remaining superannuation interest at that point in time. The most likely inference is that the remaining superannuation was of minimal value because, other than the $20,000 cash which is uncontroversial, the mother deposed that the father had no significant assets at the commencement of their relationship.[86]
[84] Father’s affidavit, par 3
[85] Father’s affidavit, par 6
[86] Mother’s affidavit, par 101
The mother conceded she had no assets of any significance at the commencement of cohabitation.[87]
[87] Mother’s affidavit, par 101
Soon after the parties’ marriage in 1998 they entered into discussions with the maternal grandparents about the transfer to the parties of a vacant block of land in Sydney. That land was transferred to the parties in April 1999 for consideration of $151,000.
It is common ground that none of that debt was ever repaid and a finding has already been made that the debt is now statute-barred. The consequence is that the parties received, by windfall, a parcel of property worth $151,000 from the maternal grandparents.
The maternal grandparents owned an adjacent vacant block of land. The maternal grandfather confirmed in cross-examination he sold that adjoining land and gave the proceeds of sale to his son about five years ago. The father contended the maternal grandparents always intended to benefit their children equally by giving one parcel of land to each of their children.[88] I accept that is true, given the benefit received by the mother’s brother. In those circumstances, the intention of the maternal grandparents in conveying the vacant block of land to the parties in April 1999 was to confer a benefit on the mother, not the mother and father jointly. The transfer of the land into the joint names of the parties was merely recognition of their marriage. The intention was to confer equal financial advantage on the mother and her brother. Consequently, the contribution of that parcel of land was an indirect contribution for which the mother is entitled in full measure (see Marriage of Kessey (1994) FLC 92-495 at 81,149-81,150).
[88] Father’s affidavit, pars 100-102
The parties constructed a home upon that land using a combination of borrowed funds and the residue of the $20,000 cash held by the father.[89] When that property was sold the net proceeds of sale were attributed to the purchase of the former matrimonial home in Queensland. The sale proceeds were sufficient to enable purchase of the former matrimonial home without the need for any loan or encumbrance. The parcel of Sydney land provided by the maternal grandparents was therefore the springboard for the parties’ ownership of real estate and financial security.[90]
[89] Father’s affidavit, pars 5-6
[90] Mother’s affidavit, par 103
The father deposed the parties were “equal caregivers to the children” and that he was the “major financial provider for the family”.[91] I do not accept that evidence. The mother’s evidence, which I prefer, was that the father’s employment was intermittent and the family had little money. The father last worked full-time in about 2007[92] and he has not worked at all since July 2009.[93] The mother conducted some businesses but they apparently had meagre success. She was the primary homemaker and carer for the children.[94]
[91] Father’s affidavit, par 79
[92] Mother’s affidavit, pars 8, 104
[93] Family Report, par 52
[94] Mother’s affidavit, pars 9, 105, 106
Following separation the father remained in occupation of the former matrimonial home and primarily cared for the children for a period of about six weeks until the mother assumed exclusive care of the children.
During the period the father cared for the children he applied for a child support assessment, which subsequently issued.[95] The mother was unable to pay the assessment at that time and subsequently resisted the father’s demands for payment.
[95] Father’s affidavit, par 89; Exhibit F8
Since the children have been in the care of the mother the father has not paid any child support to her. There is no evidence she has sought a child support assessment. The father explained he has paid no child support because he has never been asked. It is therefore an agreed fact the mother has borne exclusive financial responsibility for the children since October 2010.
Shortly following separation the parties agreed to bear equal responsibility for the mortgage repayments on the former matrimonial home, despite the fact that the father then had sole and exclusive occupation of the home.[96] The mother made no repayments and the father ceased making repayments a month later.[97] There is no evidence of either party making any repayments on the mortgage since November 2010, at about the time the property became uninhabitable due to fire damage.
[96] Father’s affidavit, par 90; Exhibits F1, F2
[97] Father’s affidavit, par 91
The parties also reached agreement that the expenses and utilities relating to the former matrimonial home would be their equal responsibility.[98] The father paid some rates of nominal value levied upon the property pursuant to that agreement.[99]
[98] Father’s affidavit, pars 95-96
[99] Exhibit F5
The mother declined to make any contribution to the repayments on the father’s credit card account despite his demand,[100] even though expenditure on that account was for the benefit of the parties and children prior to separation. However, since separation, the repayments made by the father on that account have been insufficient to prevent the liability enlarging by some $5,700.
[100] Exhibit F3
The mother received a family tax benefit of $9,469.78 from Centrelink in June 2011, which payment related to the 2008-2009 financial year when the parties were cohabiting.[101] The mother deposed to her receipt of the money and the reasonable use to which it was put.[102] The assets she acquired with the money are included within the matrimonial pool of property.
[101] Exhibit F4
[102] Mother’s affidavit, par 99
Given the substantial contribution of the parcel of land in Sydney, off-set to some extent by the injection of the father’s $20,000 cash, the mother’s superior contributions during cohabitation and the mother’s superior contributions since separation, I assess the mother’s entitlement at 60 per cent and the father’s entitlement at 40 per cent.
The mother’s 60 per cent share of the matrimonial pool equates to $195,681 and the father’s 40 per cent share equates to $130,454.
Adjustment
The mother is aged 38 years and in good health. She is in part-time employment, but her income is very modest.
The father is aged 41 years and apparently in good physical health. He is not currently employed but his income-earning capacity is not seemingly impaired. He receives a Centrelink benefit in the form of a carer’s allowance because he cares for the paternal grandmother on a full-time basis. The paternal grandmother is not however financially dependent upon the father.
The father said that he and the paternal grandmother can live quite comfortably on their combined income, but he was contemplating searching for employment at some stage in the future.
The father will retain superannuation interests of relatively modest value, but those interests are still presently worth triple the mother’s superannuation interest.
In all likelihood, the mother will receive little or no child support from the father for the remainder of the children’s minority. The youngest of the three children is still only seven years of age, so the mother will probably be solely financially responsible for the children for many years to come.
No other features of the evidence were addressed by the parties as relevant to the exercise of discretion under ss 79(4)(d)-(g) of the Act.
Ordinarily, the features of the evidence addressed would attract an adjustment in the mother’s favour of around 10 per cent, but 10 per cent equates to only $32,614. That sum is wholly inadequate to redress the differential in the parties’ future needs.
As was pointed out by the Full Court in Marriage of Clauson (1995) FLC 92-595 at 81,911 – 81,912, when referring to an adjustment warranted by factors under s 75(2) of the Act:
…it is the real impact in money terms which is ultimately the critical issue.
That principle has been the subject of frequent endorsement. The overall property adjustment between the parties must be just and equitable, not just the underlying percentage division of the net value of the parties’ assets (see Marriage of Phillips (2002) FLC 93-104 at [59]-[68]). In cases where the net pool is relatively modest it is often preferable to express a third stage adjustment as a lump sum rather than as a percentage (see Parrott v Public Trustee of NSW (1994) FLC 92-473 at 80,906 – 80,907). This is a case in which such a course is justified.
A cash adjustment amounting to the entirety of the father’s 40 per cent share in the matrimonial pool, equating to $130,454, is an appropriate adjustment.
Just and equitable orders
It is common ground that the mother will retain assets (items 5, 6, 7 and 8) and financial resources (item 15) valued at $27,470. That amounts to only 8.4 per cent of the pool. She needs to recover property worth $298,665, being an extra 91.6 per cent, to realise her full entitlement.
It is also common ground that the father will retain assets (items 2-4), the value of the notional add-back (item 9), liabilities (item 11) and financial resources (items 13-14) valued at $226,681.
It will be impossible for the mother to recover her full entitlement from the matrimonial pool given the father’s retention of his personal chattels and superannuation interests. Even off-set by the credit card liability, for which he will remain solely responsible, the father will retain 9.6 per cent of the pool. If the notional add-back is counted, his share climbs to 69.5 per cent.
The father’s chattels are worth only $5,700. Their minimal value renders pointless their sale and the payment of the sale proceeds to the mother.
No superannuation splitting orders were sought by the mother and the Court cannot be expected to split the father’s superannuation interests of its own volition, especially when the superannuation fund trustees have not been accorded procedural fairness in accordance with the Act (s 90MZD) and the Family Law Rules 2004 (Cth) (r 14.06).
The parties agree the former matrimonial home must be sold. The sale of the property by the parties may however be overtaken by the foreclosure of the mortgage. Leave is therefore granted to the mother to provide a copy of the orders to the mortgagee so that she may try and persuade the mortgagee to allow her to handle the immediate auction sale of the property. The prospects of a higher sale price are enhanced if the sale is in her hands rather than the hands of a mortgagee in possession.
In order to maximise the return to the mother, she should receive the totality of the net proceeds of sale of the former matrimonial home.
The prospect of the parties receiving any insurance payout on the former matrimonial home is negligible, given the insurer has already declined indemnity and neither party has any intention to sue the insurer. However, if the insurer could be persuaded to indemnify the parties, either in whole or in part, the payment would be made to the parties in equal shares because of their joint proprietorship of the property. Provision is made for the mother to be the sole owner of any such insurance payment in order to maximise her recovery of property. Payment of any insurance monies would diminish the value of the add-back attributed to the father in the property adjustment process.
Receipt by the mother of both the net proceeds of sale of the property and the totality of any insurance payout would almost certainly still be insufficient to cover her entitlement.
No order is made for the mother to deliver up to the father the chattels specifically nominated in his Amended Response. The father desired the return of a “go-via tag” and his “tools of trade”. No evidence was adduced about those chattels and no submissions were made about them. No finding is possible that the chattels are even presently retained by the mother.
I am satisfied the property adjustment orders set out at the commencement of these reasons are just and equitable.
I certify that the preceding one hundred and seventy five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 5 April 2012.
Associate:
Date: 5 April 2012
Key Legal Topics
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Equity & Trusts
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Property Law
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