SURRY & SURRY
[2019] FamCA 661
•18 September 2019
FAMILY COURT OF AUSTRALIA
| SURRY & SURRY | [2019] FamCA 661 |
| FAMILY LAW – CHILDREN – assessment of risk – where the Court makes no findings that the father presents as an unacceptable risk of harm to the children – where the Court finds the mother presents as an unacceptable risk of harm – orders made for the children to live with the father and the father to have sole parental responsibility. FAMILY LAW – PROPERTY – modest divisible pool – orders made that achieves justice and equity between the parties – require further submissions as to sale of home. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 79, 75 |
| Surry & Surry [2018] FamCA 948 Goode & Goode (2006) FLC 93-286 Stone & Holmes and Anor [2017] FamCAFC 152 Hickey & Hickey (2003) FLC 93-143 |
| APPLICANT: | Mr Surry |
| RESPONDENT: | Ms Surry |
| FILE NUMBER: | BRC | 12807 | of | 2016 |
| DATE DELIVERED: | 18 September 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 25, 26, 27 & 28 June 2018 and 21 May 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms D Wardle |
| SOLICITOR FOR THE APPLICANT: | DME Law |
| THE RESPONDENT: | Self-represented 25, 26, 27 & 28 June 2018 and no appearance on 21 May 2019 |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr G Andrew (25, 26, 27 & 28 June 2018 only) |
| INDEPENDENT CHILDREN’S LAWYER: | Ms S Duncan Legal Aid Queensland |
Orders
That all previous Orders and Parenting Plans be discharged.
That the children, X born … 2007 and Y born … 2010 (“the children”) live with the father.
That the father have sole parental responsibility for the major long term issues of the children.
That the children spend time and communicate with the mother at all times as may be agreed between the parents.
That pursuant to Section 68B of the Family Law Act 1975:
(a)the mother is restrained and an injunction issues restraining the mother from contacting the children at their school or public places of sporting or other activity; and
(b)the mother is restrained and an injunction issues restraining the mother from removing or attempting to remove the children from their schools or the care of the father.
That father arrange for the children’s continuing attendance upon Ms B for counselling (or if she is unable or unwilling to continue with counselling for the children some other counsellor selected by the father) as determined by Ms B or her replacement counsellor, and the father will continue to pay the costs associated with that counselling.
That the Independent Children’s Lawyer be discharged.
AND THE COURT DIRECTS:
That the husband file and serve a minute of order for property adjustment in accordance with the Reasons for Judgment delivered 18 September 2019, within fourteen (14) days.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Surry & Surry has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 12807 of 2016
| Mr Surry |
Applicant
And
| Ms Surry |
Respondent
REASONS FOR JUDGMENT
Introduction
These parenting and property proceedings were commenced by the father in December 2016 after the mother asserted that the father had sexually abused the children X (born in 2007) and Y (born in 2010).
Despite interviews by Police and investigations by the Department of Child Safety, Youth and Women (“the Department”) which did not result in any charges against the father or substantiated abuse or neglect, the father (who had spent no physical time with the children since mid-2016) commenced supervised visits as a result of Orders made by a Senior Registrar on 14 September 2017.
The contextual history below reveals some of the numerous events that the Court managed to try and get the proceedings listed for a hearing which began on 25 June 2018 and proceeded for four days. As the mother (who had sought an adjournment of the hearing – which was refused) was unrepresented, the Court decided that once the Independent Children’s Lawyer (“ICL”) delivered oral submissions and a minute of proposed orders which are referred to later in these Reasons, the mother should be given a reasonable opportunity to provide written submissions. This seemed particularly fair to the mother where the ICL, represented by Mr Andrew of Counsel made strong and considered oral submissions that:
a)the father was not a risk to the girls; and
b)there should be an immediate change of residence to the father and at least a moratorium preventing physical contact between the children and the mother.
Suffice it to say, the mother was distressed and as a result, found it difficult to respond orally to the ICL’s submissions (supported by Counsel for the father Ms Wardle), and the mother’s written submissions were filed on 10 August 2018. Again, I deal with the substance of the mother’s written submissions later in these Reasons.
Whilst the proceedings, effectively concluded on 10 August 2018, were reserved for judgment a totally unanticipated development occurred and, as set out again below, on 7 November 2018, on an interim basis, the Court made a Recovery Order and further made Orders that the children live with the father; commence counselling immediately and that the mother spend no time with the children pending further hearing after the mother provided some evidence as to the November 2018 events.
The mother appeared personally on 7 November 2018 when submissions on the Recovery Order were received and ex tempore Reasons for the Orders made were delivered (see Surry & Surry [2018] FamCA 948). It was necessary for the Recovery Order to be executed.
Since 7 November 2018, the mother has not engaged with the Court; made any further appearances; filed any additional material (as directed more than once) and has not had any meaningful contact with the ICL.
Sadly, the mother does not appear to have made any real attempts to see the children. As a result, after giving the mother every opportunity, on 21 May 2019 the Court dealt with both the parenting and financial applications in the absence of the mother.
In the unusual circumstances, the reasons now delivered are shaped by a likelihood that at some time in the future the mother (who was the primary carer of the children since separation in approximately September 2015 until November 2018) will wish to spend time with X and Y. I cannot, nor should I, speculate on what orders might be in the best interests of the children at that uncertain future date.
I deal with the parenting applications first in these Reasons, before undertaking an analysis of the evidence in respect of the contested property proceedings.
Statutory pathway for parenting orders
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
Concise history
Statements of fact hereafter should be construed as findings of fact.
The parents commenced cohabitation in 2003, when both were approximately 30 years of age and married in 2006. The eldest child X was born in 2007. She is now 12 years of age. The youngest daughter Y was born in 2010 and is now nine years of age.
Separation, under the one roof, occurred in late 2015. It is clear that the tensions in the relationship also arose from the strained financial position of the parties, whose main source of income was a small retail business.
By August 2016, the tensions erupted with the mother making serious allegations against the father that he was “a child abuser” and a “paedophile” and that he had “touched Y’s private parts”.
On or about 22 August 2016 the situation caused the Police to attend the home and the father left. In the period from 23 August 2016 (when the mother first contacted police) until June/July 2017, a number of interviews and observations were initiated by the mother and involved the children with Police, the Department and medical investigations. Because of the seriousness of these investigations and what the children are recorded as saying, these issues are more fully analysed below.
In circumstances where the father had no physical contact with the children for over 12 months (whilst these investigations were carried out), in December 2016 the father filed an Application in the Federal Circuit Court of Australia seeking parenting and property orders. On an interim basis the father sought orders that the children live with the mother and that he spend unsupervised time each alternate weekend – leading finally to an equal time regime. He also sought an order that the mother undertake a psychiatrist examination. On 21 February 2017 a Federal Circuit Court Judge directed that the mother file a Response to the father’s property application. Curiously, his Honour transferred the parenting application to the Family Court of Australia (for inclusion in the Magellan list), but retained the modest property application in the Federal Circuit Court.
Importantly, and I find as a deliberate tactic by the mother, the mother did not file any Response to the father’s parenting application until 20 July 2017 – despite directions to do so. In my view, the mother’s failure to provide her Response and her supporting evidence delayed the Court being in a position to consider interim orders. The effect on the children is obvious. They spent no time with the father from August 2016 until 7 October 2017, when the first supervised visit occurred at F Group. That visit was in accordance with Orders made by Senior Registrar Spink on 14 September 2017, with his Orders shaped, it seems, by the family report of Ms M. This first family report dated 4 September 2017 arose from observations and interviews undertaken on 15 August 2017, where the report writer recommended at least supervised time commence (if the Court finds the children to be at risk of sexual abuse in the care of their father).
The evidence from the F Group notes (supported by “[Ms V]” who gave evidence at the hearing), was that the first seven visits at F Group went well with the children engaging happily with the father. Perhaps coincidentally, after interviews were conducted by Dr P (Consultant Psychiatrist engaged by the ICL) on 31 January 2018 of the mother, the next visit between the children and the father on 10 February 2018 began with the children refusing to see their father – a refusal that continued at two subsequent scheduled visits (on 24 February 2018 and 10 March 2018). The contact centre then, in accordance with their protocols, suspended further supervised visits. So as to prevent further alleged contravention of the earlier Orders, the Court formally suspended the orders for the children to spend supervised time with the father on 16 March 2018.
The ICL arranged for further interviews of the children to be conducted by Ms M on 29 May 2018, as a result of a specific direction by the Court to seek from the children, if possible, an explanation for their apparent change of attitude to spending time with the father on 10 February 2018 and thereafter. Ms M was available for cross-examination at the hearing, which commenced on 25 June 2018.
At the conclusion of the evidence, Counsel for the ICL Mr Andrew made strong and considered oral submissions in support of an order he tendered (marked Exhibit 31) that:
“1. That all previous Orders and Parenting Plans be discharged.
2.That the children X born … 2007 and Y born … 2010 live with the father.
3.That the father have sole parental responsibility for the major long term issues of the children.
4.(a) For the first three months from the date of these orders the mother spend no time and not communicate with the children except for:
i.Sending the children a card or letter once a fortnight;
ii.Sending the children a card and gift on special occasions.
(b) After the expiration of three months from the date of these orders:
i.The children spend time with the mother for two hours each fortnight supervised by F Group Town T with the parties to share the costs of such supervision.
ii.The children communicate by telephone each Wednesday between 6.30 and 7.30pm with the call to remain on speakerphone.
4.The father will arrange for the children to attend a counsellor forthwith to assist them to understand and copy with the transition from the mother’s household to his household with the children to continue to attend with this counsellor for as long as this counsellor shall determine.
5.That Ms M in company with the children’s counsellor shall explain these orders to the children at the time the children come in to the care of the father. The costs of Ms M and the counsellor will be paid by the father.
6.The father shall be at liberty to provide the children’s counsellor with a copy of the Family Reports of Ms M dated 4 September, 2017 and 8 June, 2018 and the report of Dr P dated 19 March, 2018, a copy of this parenting order and any reasons for judgement.
7.Within 12 months of the orders that the Mother have liberty to apply with respect to changing the frequency, conditions and duration of the time with the children.
The findings which the ICL contended should be made by the Court underpinning these orders were that:
a)the father is not an unacceptable risk of harm to the children of sexual or other forms of abuse;
b)the mother is an unacceptable risk of emotional harm to the children; and
c)the mother will not facilitate and encourage a meaningful relationship between the children and the father.
The proposed orders included an order that there be a moratorium of three months after the change of residence to the father, when the children would spend no physical time with the mother to then be followed by supervised time.
The proposals were supported by the father, and his Counsel Ms Wardle adopted the extensive oral submissions of Mr Andrew.
The mother’s written submissions filed (later than directed) by the unrepresented mother did challenge, in a structured and coherent manner, the submissions of the ICL, before concluding that final parenting orders should be made (based on a finding that the father is an unacceptable risk of harm to X and Y), as follows:
“1. That the children:
X born … 2007, and
Y born … 2010
Continue living with the mother.
2.That the mother have sole parental responsibility for the major long term issues of the children.
3.That the children remain enrolled at U Primary School, without interruption to their academic studies.
4.That the children commence graduated time with the father under the strict supervision of a family member.
That this time commence every second Saturday from 10am – 5pm, for a period of three months, with time progressing to 10am Saturday – 5pm Sunday for a period of three months, and thereafter 6pm Friday – 5pm Sunday.
5.That time spent with the children is to remain under the constant supervision of a family member.
6.That the other shall engage the children in therapeutic counselling by a suitably qualified professional at the mother’s expense.
7.That the mother shall obtain therapeutic counselling from a suitably qualified professional.
8.That the parents shall communicate via app regarding time with the children.
9.That should the father’s work commitments be such that he is unable to afford time with the children, that he shall notify the mother 24hrs prior to collect.
10.That the mother shall deliver and collect the children from the father’s home at the scheduled times.”
As earlier alluded to in these Reasons, whilst the matter was reserved for judgment, dramatic events occurred which are more fully dealt with below, but the effect of which was that the children were removed from the care of the mother via a Recovery Order, and since approximately 9 November 2018, X and Y have lived with the father and have returned to their school life. Sadly, the mother has not engaged in the Court process since 7 November 2018 nor has she seen the children.
The Court’s orders made 7 November 2017 (see Surry (supra)) directed the father “to engage Ms B, psychologist, immediately to provide therapeutic counselling for the children” – which the father did. When the Court dealt with the proceedings finally (but in the absence of the mother) on 21 May 2019, a report from Ms B was available and is referred to later in these Reasons.
Ms B’s report (filed under Affidavit of 24 April 2019), confirmed the eight appointments the children had attended with her since the first appointment on 12 November 2018 and opined that:
“8. Despite the expected immediately difficult transition the children in my observation adjust to living with the father and not seeing the mother very well and quite quickly.
…
12. Currently the children present as happy, well-adjusted, and developmentally typical overall. The father has been consistently motivated, suitably aware, and well-considered in managing any presenting issues or concerns with support. The children confirm they feel safe in the father’s care.”
I am satisfied, as my orders made 23 November 2018; 31 January 2019 and 1 March 2019 reflect, that the mother was given every reasonable opportunity to file material and be heard after the dramatic events of 9 November 2018. She has failed to do so without a clear explanation, noting that the ICL (Ms Duncan) informed the Court she had also sought to activate and encourage the mother to participate.
I am conscious that as final orders are being made in the absence of the mother, the mother could seek to set aside these orders made in her absence. However, the Family Law Rules2004 make it clear that any set aside or variation is a matter of discretion. In the final paragraphs of these parenting Reasons, I do engage with the possibility that at some future date, the mother may decide to seek to spend time with X and Y
I intend to deal discretely with two significant issues, namely:
a)is the father an unacceptable risk to the children? and
b)is the mother an unacceptable risk to the children?
In so doing, I accept that the events of November 2018 and the mother’s conduct and behaviour since November 2018 do in many ways support some of the concerns expressed both by Dr P and Ms M about the mother. It is unusual that a Court has the opportunity to consider such expert opinions in the context of behaviour of a parent, after these assessments.
Is the father an unacceptable risk to the children?
When delivering ex tempore Reasons for making the Recovery Order on 7 November 2018, I said at paragraph 6 that:
“6. I do not propose in these interim Reasons today to set out in every detail why the Court has formed the view on the evidence as tested before it at the time of the trial that the father does not present as an unacceptable risk of harm to the children, but that is the Court’s finding. My reasons which will follow in due course reflect the submissions of the ICL which were adopted by the father. I understand that the mother still holds the view that the children were sexually abused by the father, and her view is not in any way diminished.”
Sexual abuse allegations by young children are often fraught with unreliability due to the young ages, developing verbal skills and abilities to link time and place with accuracy.
The Full Court (Thackray, Kent and Watts JJ) in Stone & Holmes and Anor [2017] FamCAFC 152 identified some principles which give guidance to trial Judges at [34] to [38] which I incorporate in these Reasons:
“34. The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
35. The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].
36. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
37. As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
38. We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).”
Although the finding expressed on 7 November 2018 was based on the evidence at the hearing in June 2018, some residual (yet untested) concerns arising from the allegations around the events of 7 November 2018 in Sydney, with the benefit of closer examination of the documents produced under subpoena by the Z Hospital (Exhibit 35) and the New South Wales Police (Exhibit 36), together with the remarks recorded by Ms B in her report made by the children to her, make the finding urged by the ICL even more compelling – and I make it.
A careful reading of the mother’s written submissions demonstrate that she did not really engage in the opportunity to reply to the oral submissions of the ICL, rather she chose to:
a)confirm that the evidence of Dr W that sexual abuse “cannot be ruled out”, should be interpreted as some corroboration that it is likely to have occurred. I do not accept this submission;
b)challenge (at paragraphs 7 to 12) the assessment by Dr P by merely referring (without appropriate balance), to some of these opinions Dr P offered that the mother claims supports her genuinely held beliefs;
c)at paragraph 13/14 of her submissions, refer to an interview of the maternal grandmother by the report writer, when the maternal grandmother “expressed no doubt that the disclosures were legitimate”. The mother, without explanation, did not make her mother available for cross-examination and in these circumstances the basis upon which the maternal grandmother held her belief could not be tested;
d)provide a summary of the children’s statements to the report writer in May 2018 (see paragraphs 14 to 18 of the submissions), which do nothing more than assert what the children told Ms M were true and by repeating them to the report writer, that makes them more believable. The context for those statements (and the disclosures generally) is significantly the subject of Ms B’s most recent report – since the children are no longer under their mother’s influence.
I make the following findings considering the submissions of the ICL:
a)After separation, the mother says some disclosures were made by the children and as a result she formed a view in around July 2016 that the father had abused Y from age two and that this included:
i)physical abuse in 2012;
ii)passing on herpes to Y in 2012 or 2013;
iii)made a comment in 2013, when Y (aged three years) had her hand down her pants and was asked by the mother how she learnt that behaviour and she responded “go ask daddy”;
iv)observed blood in Y’s undies in January 2014;
v)the girls taking nude photographs of each other with the father’s tablet under 2015; and
vi)in 2013, during the family holiday at Christmas in Town AA with the paternal grandparents the father made the children eat “beetles, rocks and grass”.
b)The father denied any of these events occurred. There is no evidence (although Dr A was called by the ICL) to support any finding that the child was diagnosed, as the mother alleged in Court on 21 February 2017, that the father has passed on herpes to the child or that the child was even diagnosed. It was, I find, a scandalous allegation by the mother without foundation. I share the concerns of the ICL that the time when the children are alleged to have made these disclosures about events (some many years ago) being post separation is relevant;
c)The mother contended that the father had initiated sex by lying on the child Y and “wiggling”. The allegation was denied by the father and in the face of those denials (even though the father acknowledged that at times he tickled the girls – not in the area of their genitalia – playfully) the mother’s allegations coming she says from additional disclosures, included the father having an erect penis and then, was further lifted to a more serious allegation of penile or digital penetration. In the case of Y, this is said to have occurred when she was only three to four years of age and caused a “pool of blood” to form – seen allegedly by X;
d)The ICL, referring to Exhibit 11 being an initial report to police on 15 May 2017, says the less detailed complaint reported by the mother reveals it to be a “classic recent invention”. I agree;
e)I agree with the ICL’s submissions that at least from May 2017 in circumstances where the father was spending no time with the children, the mother’s actions can be interpreted as seeking to gather evidence to support what she says were disclosures made by the child which over time became more bizarre as I will reveal. Also it is, in my view, consistent with the mother’s intense paranoid behaviour that she sought to begin home schooling the children from 17 May 2017. This effectively denied the father from exercising any visitation to the children at school as he was attempting to do. Although X returned to school earlier, Y did not return to her school until October 2017, after orders by Senior Registrar Spink;
f)The interviews by Police of the children, the mother and the father (and Police assessments) are before the Court and marked as exhibits as follows:
i)Exhibit 1 – statements transcribed and tapes of Police interviews on 26 May 2017 – Y
ii)29 May 2017 – mother
iii)5 June 2017 – Y
iv)6 June 2017 – father
v)10 June 2017 – Y
vi)10 June 2017 – X
I do not propose to analyse each of these statements, which although I accept were made by the child, were made I find under the influence or coaching of the mother (either overt or less so). I accept, on their face, they recount serious sexual misconduct by the father, however they cannot be reliably accepted as true for the reasons articulated by the ICL;
g)Exhibit 5, a Police record for 22 August 2016 revealed the mother believed that Y had been acting “strange” with her older sister which the mother believed was due to the father “indecently dealing with Y”. The father says he noticed (as still a member of the household) no strange behaviour by Y. I accept his evidence;
h)Exhibit 6, a Police note for the following day 23 August 2016, is important because what the mother records there with Police is not consistent with later allegations by the mother. This is consistent with, I find, the mother continuing to assert more serious new disclosures to support her entrenched beliefs;
i)Exhibits 7, 8 and 10 are records of involvement by the Department. Again, although the children do make concerning comments (the notes are dated 29 August 2016; 15 February 2017 and between 20 and 27 March 2017) they did not result in any action by the Department. At the trial, Case Officer Ms BB gave evidence about the Department’s involvement including in respect of a further recent notification on 23 April 2018. That notification (coming as it did after the supervised visits had ceased) resulted in notes prepared about interviews with Y and X (separately but with the mother’s consent) at their school on 3 May 2018. Exhibits 16 and 17 set out details of the interviews. The Department found there was no substantiation of any risk the father presents. Ms BB confirmed there are no pending investigations; that the Department noted some concerns had been expressed by the children against their father, but there was no substantiation and the children were not currently at risk. The Magellan reports confirm this was the Department’s position;
j)I find that the mother, clearly unhappy that neither the Police nor the Department were prepared to either prosecute or intervene, took the view at different times that she should attempt to gather further evidence. No other reasonable explanation exists for the mother’s engagement with the following health professionals (all out of an abundance of fairness called as witnesses by the ICL), namely:
i)Exhibit 12 – refers to a consultation on 13 June 2017 at NN Clinic to ascertain whether the child had herpes. The child’s swab was analysed 14 June 2017 and herpes was not detected. This was consistent with no detection of chlamydia from a sample collected on 2 May 2017. At that time the pathology report revealed the presence of vulvovaginitis symptoms. The mother’s persistence in seeking to have this little girl tested was, I find, not primarily associated with her state of health but an endeavour to gather evidence. Dr A confirmed this evidence and under cross-examination by the mother Dr A confirmed that Y (in the presence of the mother) did disclose her father “put his doodle into her”. No context of timing was given. As Dr A appeared to be aware from the mother that the child was to be seen by a Paediatrician at the local hospital, Dr A conducted no further investigations;
ii)Exhibit 27 are notes of Dr W, a community Paediatrician, in respect of her examination of Y on 26 June 2017. I found that Dr W’s report accurately sets out the history as given by the mother and that the examination undertaken was “unremarkable”. Although the examination did not support an opinion of recent sexual abuse as alleged by the mother, the “normal examination cannot rule out the alleged sexual abuse”. The ICL was critical of the mother’s behaviour in requiring Y (then aged seven years) to be examined in this way. Of more relevance, in my view, is the mother’s reaction after nothing was found to support her view of sexual abuse, gleaned from the notes of the conversation with the mother on 1 July 2017 requesting a “second opinion”.
Dr W’s evidence was suitably cautious. However, when the doctor was asked for an opinion on the likely reaction of a young child to a trauma (associated with sexual abuse as the mother alleged) to Y causing a puddle of blood to form, Dr W speculated that this would suggest a significant injury. However if this is alleged to have occurred (as the mother says it did) in 2013/2014 then it could have healed by 2017, without scarring. She did indicate that such a trauma would “hurt”. In circumstances where this highly vigilant mother merely observed some blood (she says) on the child’s undies at that time; heard no complaint by Y; and it was not an issue raised until post separation, I find it difficult to accept the child’s disclosure is reliable and true.
A Court should rarely be critical of a parent, confronted with allegations of the nature in this matter, seeking further assessment. However in finding that the father does not present as an unacceptable risk to Y and X, I find that:
a)the consistent denials by the father of any inappropriate behaviour by him should be accepted;
b)that the allegations initially made by the child, immediately on separation, were not reliable or are also capable of innocent explanation. For example, I do not accept the father made the children eat beetles and grass in Town AA in Christmas 2013. I do not accept the father “wiggled” around Y as asserted but accept the father probably playfully engaged like tickling;
c)the mother, relying on those earlier alleged historical “disclosures” to support her claims and expressed beliefs, I am satisfied, by some means, encouraged or otherwise supported the children making more gross and troubling disclosures whilst at the same time trying to gather other corroborative evidence – particularly when it appeared the Police were not prepared to take any action at all because of “lack of evidence”;
d)the evidence is not sufficient to find the mother “coached” the children, however now that the children have not been under the influence and control of the mother (since November 2018), their remarks to Ms B, which I accept were accurately recorded by her, are illuminating, including that:
i)“on the surface they fully trusted the mother and what she told them, but they simultaneously secretly doubted her because they though their mother’s behaviour odd and at times scary.”
ii)“The children readily recognise that often what the mother said or did was unreal or bizarre.”
iii)As to the alleged sexual abuse by the father, “Y admitted she doubts anything actually occurred - she shared she remembers being told about events rather than remembering the actual events.”
iv)Confusion on the past events “is the main treatment issue for the children currently”, and in circumstances where the alleged victim of the abuse was generally Y, X who had heard comments by Y “struggles to reconcile this with her experience that Y rather than the mother told her of the alleged abuse.”
I accept the evidence of Ms B, considering the history of this matter and in particular the constant and persistent influence by the mother (not able to be balanced by spending time with the father other than the seven supervised visits), that the children’s way of trying to cope with the difficult history is to decide “that something (vaguely) may have occurred in the past but 'the scare' of having no time with the children for a lengthy period has resulted in the father being determined to do the right thing from now on.”
In the light of these findings, it is fair for the father to ask, what has motivated the mother to act in such a manner with potentially such a damaging effect on the children for their life – children who I accept the mother deeply loves and wished to protect.
As the next section of these Reasons explore, my view is that the mother is mentally unwell and that, more than a conscious and vitriolic desire to hurt the father, lies at the centre of the mother’s at times bizarre and troubling behaviour.
Does the mother present as an unacceptable risk of harm to the children?
Whilst the ICL, in final oral submissions in June 2018 contended that the mother was an unacceptable risk of causing emotional harm to the children on the evidence produced at that time, the events of November 2018 and the mother’s behaviour since do further support such a finding – which I make.
The reasons for this finding follow, however I immediately acknowledge that the mother chose not to test the additional evidence nor to explain her recent behaviour. The mother has not provided any fulsome review of her current functioning, seen in the light of not only the earlier expert assessments of Ms M and particularly Dr P, but the events recorded around November 2018. However the Court, in an effort to bring some closure for the family (at least for the time being), had to proceed on the best evidence gathered by the ICL.
In seeking to assess the mother’s functioning and whether she currently presents as an unacceptable risk of harm to X and Y, I take into account the following maters.
Report and evidence of Dr P
Consultant Psychiatrist Dr P was fair to observe that there are accepted limitations and difficulties that flow from a diagnosis or assessment made during a cross-sectional interview. As is often the case, there was no evidence of the mother having undertaken treatment (voluntarily or involuntarily) for mental health issues in the past. Dr P is bound to rely on statements made by the patient and is not able to determine disputed facts – of which between these parents, the major issue was whether sexual abuse had occurred.
Dr P necessarily relied upon the Court to make the forensic determination about disputed facts, and at the time of the cross-examination of Dr P, he was asked to consider IF the Court found (as it now has) that the father was not an unacceptable risk to the children, the likely effect of such finding upon the mother’s functioning. I accept such opinions are somewhat speculative. Legal Aid funding does not extend to an updated report from Dr P, interpreting the events from November 2018, and so essentially the task of the Court is to consider those events separately. A summary of the report and evidence of Dr P, I find, as follows:
a)Noting that the documentation provided to him has been relatively extensive and complex, Dr P said such documentation “has highlighted a number of concerns about the mother’s belief systems with respect not only to the sexual abuse of the children but also to the other factors including her home computer network being interfered with as well as conspiracies involving various medical practitioners. These beliefs certainly suggest the mother has a propensity to jump to conclusions and has an overall paranoid stance.”
b)When discussing the mother’s personality, Dr P opined that the mother’s vulnerabilities and the presence of paranoid personality traits “would indeed meet the threshold of a paranoid personality disorder” as well as the presence of some “obsessional features”. Dr P referred to the father’s evidence, which I accept, that historically the mother was prone to significant emotional instability as well as issues with anger and that “this may suggest the possibility of personality vulnerabilities in the cluster B range although it could also be attributable to the above personality issues”. On all the evidence, I accept this concerning assessment of the mother by Dr P. It would be expected, in cross-examination, Dr P’s diagnosis was tested, however he maintained his view;
c)Of course, it is more the effect on the capacity of a parent of any mental health issues that the Court must assess. It is not proper to merely “label” a parent, however in this case, the mother demonstrated no insight into her vulnerabilities and had an immovable view about the sexual abuse perpetrated upon the girls (particularly Y) by the father. Having found earlier in these Reasons that the mother had influenced the child to accept her beliefs, then Dr P opined that “if the court were to find that the mother was burdened by a propensity to morbid thought processes that affected her judgement with respect to these issues, it would certainly be my view that the mother would be likely to be deprived of all if not some of the relevant capacities.” I accept this opinion;
d)Under cross-examination Dr P also opined that:
i)there was nothing in the interview that suggests the mother could harm the children physically;
ii)the mother would benefit from treatment which is quite difficult, but anti-psychotic medication and therapy may help but even with intensive psychological support there is no certainty the mother’s fixed views would shift;
iii)irrespective of any finding by the Court, he would be concerned that the mother would be rigid in her views; demonstrate continual hypervigilance; and this could impact the nature of “messages” given to the children; and
iv)the mother would wait for the “truth to come out” whilst protecting the children.
Views of relevance on this issue by Ms M
Ms M in her first family report (prepared before the evidence of Dr P was available), at paragraphs 163 and 164 said:
“163. If the Court finds that the mother has fabricated the allegations, and prompted Y to make false disclosures, the children would be at risk of significant emotional abuse in the care of their mother. In such an event, the Court may wish to seek a full psychiatric evaluation of the mother, to determine whether her actions are the result of mental ill-health, or malicious intent.
164. In the event the mother has a mental illness, appropriate treatment may reduce the risk to the children of ongoing emotional and psychological abuse. A psychiatric evaluation may be able to assist the Court to determine any potential risks to the children.”
The report writer at different parts of her report raised concerns about the children’s recount of sexual abuse and raised, as a possibility, that “… the presentation of the children contained a number of indicators that the children had been coached for the interview...”(at paragraph 137). The more recent candid, and I find believable, remarks made by the child Y to Ms B about her mother’s influence and suggestions as to a historical context, supports the concerns sensed by Ms M during her interviews in 2017.
The events of November 2018
The lack of evidence by the mother or any attempt by her to explain the events of November 2018 means the best evidence the Court has is the subpoenaed records which reveal as follows:
a)Exhibit 34 reveals that from Monday, 17 September 2018 X did not attend school. The report records a number of “reasons” offered by the mother, being “illness and medical appointments” and “holidays”. She did not return to school after the end of term three 2018 school holidays (on 8 October 2018). There is no evidence that the child was ill. Concerningly, I infer that at least from Monday, 17 September 2018, the mother had decided the child would not return to school;
b)Exhibit 36 is the Police report arising from the initial contact at 9.25am on Thursday, 1 November 2018. The report speaks for itself and in the absence of any other evidence I accept the report accurately records what the officers saw and were told, including:
i)the mother had told the informant that she had found her deceased daughter’s remains in her backyard and believes her ex-husband Mr Surry murdered her;
ii)she had recently been experiencing flash backs of abuse and violence from Mr Surry;
iii)the mother appeared to Police to be “very paranoid and manic in her behaviour” and it began to become clear the patient was suffering from paranoia and a mental health assessment would be necessary;
iv)whilst waiting for an ambulance, Y made concerning allegations about her father to Police stating that “Dad put his penis in my bum, in my vagina and in my mouth” and it happened every night and continued saying “he said if I told Mum, he will axe my head off”. The Police recorded that they “noticed whilst the child was alleging such things she appeared emotionless and like it had been rehearsed” and further when the mother overheard this conversation she said the child “had suffered STDs from the sexual assaults”;
v)An ambulance arrived at 10.45am and Police (for the sensible reasons set out) took the position that the children would be removed from the mother as she was not in a mental state to care for them. The police who accompanied the mother in the ambulance noted the mother’s “paranoid and delusional behaviour began to worsen”. The hospital told Police that the mother would not be leaving so the Police made arrangements to care for the children and contacted the father;
vi)Subsequently, investigating Detectives interviewed the children. It became apparent to them that the matter had been before the Family Court and the matters the children were (in a different style of words etc) alleging had been the subject of investigation in Queensland. The Police took no action, other than to obtain a Temporary Apprehended Violence Order on 6 November 2018 – as a precaution. The Police were aware the father was bringing an urgent application to the Court;
vii)Exhibit 35 are notes from New South Wales Health about the admission on 1 November 2018 and during her detention until they took the view she could not be further detained. The hospital notes record similar paranoid and delusional statements made by the mother. Although at the time of discharge the mother was advised to liaise with the New South Wales Department of Family and Community Services, the mother was “unwilling to wait”. I make no assessment as to whether the mother should have been released and the children returned to her care on 2 November 2018 however that was the clinical decision, and the health professionals were in the best position to make the assessment.
What is clear is that the mother misinformed the hospital about the care she was receiving. There is, for example, no evidence she was receiving psychiatric care in Queensland as she stated. The progress notes contain multiple paranoid and, I find false, allegations against the father – for example, the mother’s sister who was supporting the mother, stated “that she had been present/aware that [Mr Surry] had threatened to kill/rape the children”.
In my view, the evidence of the events of November 2018 do support the concerns raised by Dr P.
I find that the mother is an unacceptable risk of causing emotional harm to the children. The fact that she spent, it seems up to three days, living in her car with the two children and the family cat and dog, is also a significant concern and was neglectful behaviour by the mother.
What parenting orders are in the best interests of the children?
The concerns about the mother’s past behaviour and capacity to parent shaped by her untreated mental health challenges, are so profound that it is in the best interests of the children that they live with the father. He should have sole parental responsibility because, at a practical level at least, the mother is not contactable or engaged.
At the hearing on 21 May 2019, the ICL proposed that final parenting orders be made as follows:
“1. That all previous Orders and Parenting Plans be discharged.
2. That the children X born … 2007 and Y born … 2010 live with the father.
3. That the father have sole parental responsibility for the major long term issues of the children.
4. That the children spend time and communicate with the mother at all times as may be agreed between the parents.
5. The father will arrange for the children’s continuing attendance upon Ms B for counselling (or if she is unable or unwilling to continue with counselling for the children some other counsellor selected by the father) as determined by Ms B or her replacement counsellor, and the father will continue to pay the costs associated with that counselling.”
It became apparent during submissions made by Ms Duncan, the ICL, that the mother called the ICL on 11 March 2019. Exhibit 37 sets out a diary note of the ICL, as follows:
“I received a telephone call today from [Ms Surry].
She said that she needed to speak to me urgently as she had received some information that had come to light.
She told me that [Mr Surry] is not the father of the children and that she had been given [sic] him an opportunity to come forward to tell the court that but he had not done so. She said that the children were at risk in his care and they needed to be urgently recovered from him.
She told me that he was not the father of the children as he was sterile and that she lost her memory for a long time and it was only just coming back to her now.
I told her that there was never any question that he wasn’t the father and he is the father on the birth certificate but she said that he was not the father and he had assaulted her by hitting her over the head with a bat many years ago ad when he did this she lost her memory and only woke up later in hospital. She said that he had then convinced her that they were his children and she had forgotten all this until recently.
She wanted me to urgently recover the children that afternoon.
I said that I could not do that but she needed to get herself involved in the proceedings and she could certainly make an application to the court or file material in the court herself. She told me that she didn’t have any phone or email and tried to access the portal but couldn’t do so. She told me it was an emergency as this matter was a Magellan case and it was the most serious of cases and I had to do something about it straight away. She then accused me of misleading the court throughout the whole proceedings and withholding certain evidence. She told me she was sound of mind and that she hadn’t seen the children since November and she tried to contact the father who had not responded to her.
I asked her if she’d made any attempts to try and do some intake at F Group to have some supervised time and she said that she had done that. She said she had gone above and beyond to look after the interests of the children and the whole situation had gone beyond everything. She said she was leaving the matter up to me to do the right thing and that if I wasn’t going to do the right then [sic] that I was going to lose my licence. I reiterated to her that I could not recover the children for her and she kept saying to me that I needed to recover the children this afternoon, that they were in danger and that I needed to do that. I kept telling her that I could not do that and she kept saying that I would have to do that or I wouldn’t be doing my job.
She told me that she’d had a strange dream about me that I hadn’t done my job as the Independent Children’s Lawyer. That she had gone above and beyond in the best interests of the children. That I had mislead the court. That she had a tape of me talking about seeing evidence in the subpoena documents about Y having a herpes test with the doctor but then when she went to look at the documents that wasn’t there. She said there was all too much information to put into any court application and that I had had more than enough time to do something on behalf of the children.
Throughout the whole conversation she was quite heightened although she didn’t yell but did speak to me in quite a loud voice. She did ask me on numerous occasions whether I was going to be recovering the children this afternoon and I told her that was something I could not do and she was very accusatory of me telling me I was not doing my job although she did tell me she was not threatening me.
She did tell me she was ringing from her mother’s phone and the number seems to bear that out. She spoke on the phone for about 10 to 15 minutes but didn’t give me any information as to where she is living or anyway to contact her.”
The comments of the mother recorded by the ICL are paranoid and delusional in part.
Sensibly, the experienced ICL did confirm the conversation in a letter to the mother dated 21 March 2019.
On the Court’s own initiative, the parties (the ICL and the father’s Counsel Ms Wardle) were asked whether they supported the making of s.68B orders restraining the mother from attempting to contact or remove the children from their school. No objection was raised. The parenting orders at the commencements of these Reasons are in the best interests of Y and X at this time.
In preparing these Reasons, although reference to every consideration under s 60CC(2) and (3) is “highlighted”, the unusual circumstances of this case are such that the Reasons demonstrate consideration to relevant factors has been given. Certainly it is somewhat surprising that, based on the evidence of Ms B, the children who have been through many years of trauma and emotional abuse by the mother, as well as uncertainty and confusion, have so quickly and happily settled in the care of the father and do not appear to “pine” for their absent mother.
The future contact for the children with the mother is uncertain. If the mother was well, I am certain that the children would benefit from a meaningful relationship with their mother. Whether the mother will be “well” in the future is uncertain. However, sensibly Ms B, in her report finally opined that:
“13. It is my opinion that these children need ongoing support and psycho-education in relation to reconciling their experiences thus far, and understanding parent mental illness and their resulting confusing memories/beliefs. The children will likely need assistance to manage any future contact with their mother as this may have a destabilizing effect given the presenting issues as I understand them. The mother's ability to manage time with the children in a child focused manner which shields them from adult matters will be an important factor in my opinion. It would not be appropriate for me to comment further on the mother or her time with the children given that I have not had any interaction with her. I would welcome the mother's involvement going forward if she were willing.
14. I remain willing to work with any and all members of this family as decided is appropriate. An individual's willingness, motivation or support to engage is an important factor when considering the potential or likely value of a therapeutic intervention.”
Finally, I do pay tribute to the father’s dogged persistence – not only to “clear his name” but to provide a better quality of parenting to his daughters. I do not underestimate how difficult it has been for him.
Property proceedings
As might be anticipated considering the intensity and complexity of the competing applications for parenting orders, the dispute between the parties as to what orders for property adjustment, if made, are likely to achieve justice and equity consumed little time in cross-examination and little attention in the parties’ trial Affidavits and submissions. In fact, the mother’s written submissions do not mention property applications at all.
The statutory pathway to be followed in determining any alteration of property interests is clear.
Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:
a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s.79(4);
c)to consider the factors as are relevant contained in s.75(2) of the Act; and
d)finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.
Section 79(2) of the Act requires the Court to firstly consider whether it is just and equitable to make an order at all. The cessation of the relationship with the consequential severance and withdrawal from any earlier stated or unstated agreements or assumptions as to the parties’ mutual financial benefits, justify an order now being made. The parties’ cases, as articulated, accord with that intention for the Court to make orders.
Pool
Exhibit 32, as tendered during the trial in June 2018, was said by Counsel for the husband to represent an accurate summary of the parties’ position and the identity and value of the assets and liabilities.
On 21 May 2019, the husband gave some brief evidence as to the current level of debt, which evidence I accept. In particular, the housing loan is approximately $180,000 and the business loan is now around $72,000 (with the husband making repayments at a level of $1,300 a month). The husband swore, and I accept, that the business is the sole source of income for the family and that a “challenging business environment” exists for the small business in the sales and manufacture industry.
During the course of the litigation the wife challenged a valuation for the business known and trading as “CC Business” issued on 10 May 2017, by Chartered Accountant Mr EE of the firm FF Group. Certainly Mr EE believed at the time he had been appointed as a “single expert” by Judge Coates. Little turns on whether or not that is so, as his evidence was the only evidence offered to the Court and also:
a)the wife was given leave to make an application to adduce adversarial evidence, but did not; and
b)Mr EE swore an Affidavit filed 12 April 2018, annexing his valuation of 10 May 2017, and was made available for cross-examination, which the wife briefly undertook.
In that cross-examination and when challenging the “enterprise value” which Mr EE opined as a fair figure, the wife put to him that the parties (through their entity GG Pty Ltd as Trustee for Surry Family Trust) had acquired the business in June 2015 for approximately $81,750 (see Exhibit 19) and that the business had improved in value since then and had substantial stock in trade. Mr EE said that the purchase price was irrelevant to the forensic exercise he was retained to perform. As Exhibit 20 revealed, the actual price paid was a total of $75,690.09 after adjustments for stock in trade ($13,074) and other agreed adjustments.
I accept the evidence of Mr EE that the business has a nett value of $80,000 (allowing for business loans of $94,000 at that time).
The only other major assets, the jointly owned former family home at R Street, Suburb S (“the Suburb S property”), was the subject of any independent expert valuation conducted by Mr HH of JJ Group as at 26 April 2018. I adopt his estimate of market value of $320,000.
Having determined the value of the major items, I find the pool to be as follows:
Owner
Asset
Value
Assets
Joint
Suburb S property
$320,000
Trust
Business
$80,000
Joint
Motor vehicle 1
$2,500
Joint
Motor vehicle 2
$5,000
Wife
Furniture
$6,000
Superannuation
Husband
Super Fund 1 ..81
$61,000
Wife
Agreed at
$27,000
Liabilities
Joint
Housing loan
$180,000
Trust
Business loan (taken into account in business valuation)
$Nil
Wife
Australian Taxation Office debt during course of relationship
$8,415
NETT TOTAL POOL
$313,085
I ignore the value of the Motor vehicle 3 purchased (and wholly financed) by the Trust post separation. I also do not take into account taxation liabilities of the husband assessed post separation and when he had sole control and use of the business income – noting of course that he was meeting loan repayments from that income. Considering the parties separated some years ago, and without an analysis of what the credit card liabilities may have been at separation (and reduced or increased by the parties’ discretionary spending), I do not bring into account now those credit card liabilities set out in Exhibit 32.
Contributions
Counsel for the husband contended that during the relationship and taking into account the contributions post separation:
a)of the husband maintaining the business and repayments;
b)of the wife as sole carer of the children from separation until November 2018; and
c)of the husband since November 2018 as sole carer for the children,
that contribution should be regarded as equal to the date of final submissions in May 2019.
In circumstances where:
a)neither party had any significant assets or debts at cohabitation in April 2003 other than the wife owned the Suburb S property, she had acquired the property in March 2003 (just before cohabitation) for $185,000 with a loan of $177,512. She used her entitlement to the first home owner’s grant to create the minimal equity;
b)they did not receive during the relationship (to separation) of some 13 years any financial windfalls in the form of gifts, inheritances, personal injury awards or the like;
c)they both worked hard in the roles they adopted with a genuine commitment to a shared and hopefully secure financial future. Although the wife did some administrative tasks in the business, the husband was skilled and trained as an artisan and drove the business through his efforts. The wife, after the birth of X in 2007, was the primary carer for the children and the homemaker; and
d)the use of the family trust was a tax effective vehicle and all transactions involving refinancing debts (including to buy the business in June 2015) were a joint enterprise. The home, originally in the sole name of the wife, was subsequently during the relationship vested into the joint names of the husband and the wife,
I find that the parties contributed equally.
Section 75(2) factors
The absence of any evidence from the wife since the trial in June 2018 about her financial circumstances and in particular, her current financial circumstances since November 2018 (when the children commenced residing with the husband), limits the findings I am able to make. However, in this case, with a relatively uncomplicated financial history and a modest nett pool, I am satisfied that taking into account the findings I am able to make, the orders I ultimately pronounce do justice and quality to both parties.
The findings made within the matrix of the relevant s 75(2) factors are:
a)the parties are of similar ages. Having made findings about the mother’s mental health, it is still unclear whether those factors have inhibited her capacity to seek out and maintain employment – or whether she has any employment or income now;
b)the husband has generally good health, although these proceedings have induced stress and anxiety – but at all times he has maintained control of the business operations. He adduced evidence by employees Ms KK and Ms LL confirming his continuing role in the business;
c)with the obligations to meet the debts falling entirely on the shoulders of the husband, the nett income from the business is indeed modest. In his Financial Statement filed 4 June 2018, he indicates his average weekly income (gross after business expenses) from the business was $2,076 (see Item 11) – with an estimated tax liability of $530 per week - leaving a nett of approximately $1,500 per week. I think it is likely that the husband’s income and earning capacity are superior to those of the wife. This would compel some adjustment to the wife;
d)With the parenting orders now being made, a significant adjustment for the husband would be proper considering the likelihood he will be the primary carer (if not sole) carer of the children now aged 12 years and 9 years. There are many years of schooling and emotional/financial support that the girls will require and it is not likely that the wife will either offer, or be in a financial position, to assist the husband. Payment of other than very modest child support by the wife could not be anticipated;
e)Although the effect of the property division orders will allow the husband to retain the business and the former matrimonial home if he desires to do so, he will carry the responsibility for debt that may be increased to allow for a payment to the wife. His superannuation is larger but modest.
Taking all these factors into account, an adjustment to the husband of the contribution based entitlements is proper, but rather than speak of the adjustment in percentage terms, it is better that the Court considers, based on the findings made already, what orders achieve justice and equity.
What orders achieve justice and equity?
In the husband’s case outline filed 11 June 2018, the very detailed property adjustment orders sought by the husband were articulated and are annexed to these Reasons as Appendix One. The effect of those proposed orders was that:
a)the husband would retain the business and be responsible for the business debt (currently secured over the former matrimonial home);
b)the wife would be entitled to retain the former matrimonial home, with the husband transferring his interest in the property to her on the basis that:
i)the wife refinance the current housing loan; and
ii)the wife pay the husband the sum of $74,000.
c)If the wife was unable to secure refinancing within six weeks, then the home would be sold and after payment of expenses of sale and discharge of the mortgage, the nett proceeds were to be divided equally between the husband and wife;
d)Otherwise the parties were to retain their superannuation entitlements and other assets in their possession and would indemnify the other party against claims arising from their personal debts and credit cards.
When further evidence on 21 May 2019 was received in these proceedings, the husband again relied upon Exhibit 2 (filed 25 June 2018), which was a letter from a finance broker indicating the husband would be able to obtain unsecured loans up to $86,000 – enabling him to discharge the business loan over the former matrimonial home. The husband’s relevant further evidence (again noting for completeness that the Court at this time has no evidence or indication from the wife as to her position) was to the effect that:
a)he does not wish to retain the former matrimonial home;
b)the secured mortgagee has withheld recovery actions against the home (with the mortgage currently in arrears), pending the completion of these proceedings;
c)the wife “continues to live in the marital home ‘rent free’…and stopped paying the mortgage completely in late 2017.”
In oral submissions made by Counsel for the husband in May 2019, the husband contended for the same minute of order (Appendix One), save for the husband now saying that:
a)the wife should not be entitled to retain the property, but that it should be sold; and
b)on sale, the husband should receive the entirety of the nett proceeds of sale.
In circumstances where the wife has failed to engage in the Court process now for some nearly 12 months, and where the mortgagee has already taken recovery action (of some sort), but seems not to have taken possession of the home, it is not feasible to order the wife now be entitled to retain the home.
To achieve finality, whilst each party can retain their modest superannuation entitlements and other personal property, the only likely result is:
a)the home be sold, through the parties cooperating in that process in an endeavour to achieve the best market price. I have no confidence that the parties can cooperate; or
b)the Court vest the home into the legal ownership of the husband (as Trustee) for the purpose of effecting a sale. The difficulty with this approach is that if the wife continues to reside in the home and refuses to vacate (or allow agents to offer the property for inspection etc.), then the husband will need to bring further enforcement proceedings to achieve vacant possession, this incurring more costs; or
c)allow the current mortgagee to pursue recovery proceedings through which they will be able to seek orders for possession and require the wife to vacate the property to permit a sale. A consequence of this approach will be that significant further costs are likely to be incurred by the mortgagee in possession (including legal costs), reducing the nett proceeds. Also, at times a sale by a mortgagee in possession might be seen in the market by a potential purchaser as an opportunity to acquire a property at a lower price than might be anticipated from an orderly sale by the owners.
I do not accept that the husband, if a sale is effected by whatever means, should receive the whole of the nett proceeds. That would not be just and equitable to the wife, as her efforts in the relationship and the contributions she has made as set out would secure little recognition.
However, if the nett proceeds are distributed as to 50% to the husband and 50% to the wife, then such a distribution would, in my view, achieve just and equity and would represent, on the notional pool found to exist (and set out at paragraph 76 above), the adjustment of interests as follows (and based on nett proceeds of sale of home being approximately $120,000 after costs of sale etc.):
Husband
Business (after meeting business debt)
$80,000
Motor vehicle 2
$5,000
Superannuation
$61,000
$146,000
Plus 50% of nett proceeds of sale
$60,000
$206,000
Wife
Motor vehicle 1
$2,500
Furniture
$6,000
Superannuation
$27,000
$35,500
Less ATO debt
$8,415
$27,085
Plus 50% of nett proceeds of sale
$60,000
$87,085
On this basis, the husband’s entitlement represents approximately 70% ($206,000/$293,085) of the pool with the wife retaining approximately 30% of the pool. I regard such an outcome as just and equitable noting the differential of 40% (or approximately $117,000) is proper. This, in effect, is a payment by the wife to the husband of 20% ($58,000) which over the period of care for the infant children (as only one factor), is appropriate on the findings I have made above.
I have not pronounced the final property orders at this time, as I require a further submission from the husband as to how the sale of the home is to be achieved (considering the options set out at paragraph 87 of these Reasons). This might require him to have some further discussions with the secured mortgagee. He will also need to indicate how long he now needs to obtain the “unsecured” loans sufficient to discharge the business loan over the former matrimonial home.
I will direct the husband provide a further minute of order that identifies the preferred sale option, but otherwise reflects the reasons given, within 14 days.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 18 September 2019.
Associate:
Date: 18 September 2019
APPENDIX ONE
Superannuation
Businesses
The Respondent hereby relinquishes all current entitlements, benefits and any future right or benefit in the Applicant’s superannuation entitlements (whether by way of employer funded schemes or private superannuation policies of schemes) which shall then become the absolute property of the Applicant.
The Applicant relinquishes all current entitlements, benefits and any future right or benefit in the Respondent’s superannuation entitlements (whether by way of employer funded schemes or private superannuation policies of schemes) which shall then become the absolute property of the Respondent.
Within fourteen (14) days of the date of these Orders:
a)The Respondent and Applicant shall do all acts and sign all documents as are necessary to transfer to the Applicant, at the expense of the Applicant, all of the Respondent’s right title and interest in the Surry Family Trust trading as CC Business at Town DD ABN ….
Contemporaneously with the completion of Order 3. above:
a)The Applicant shall release the Respondent from all personal covenants, guarantees and any claim, demand, or action made against the Respondent howsoever arsing in respect of the past and future operation of CC Business at Town DD ABN …. and the Applicant shall indemnify and keep indemnified the Respondent from all liability howsoever arising therein;
b)The Applicant shall indemnify and keep indemnified the Respondent against all actions, claims or demands by the Deputy Commissioner of Taxation in relation to any tax liability (whether income tax, capital gains tax, goods and services tax or fringe benefits tax) which the Respondent may incur or have incurred by way of assessments, reassessments, penalties or interest on tax, howsoever arising in respect of the operation of CC Business at Town DD ABN ….
a. Within six weeks of the date of this order:
i)The parties shall sign all documents and so all things necessary, at the expense of the Applicant, to remove the business trading as CC Business ABN … as security for the home loans owing to MM Bank, Account number …14.
ii)The parties shall sign all documents and do all things necessary, at the Respondent’s expense, to transfer to the Respondent all of the right, title and interest in the property at R Street, Suburb S in the State of Queensland more properly described as Lot …on Survey Plan, County of …, Parish of …, Title Reference … (hereinafter referred to as “the property”)
iii)The Respondent shall refinance, thereby releasing the Applicant from all liability in respect of same, the loan owing to MM Bank, Account number …14.
iv)The Respondent will pay the Applicant $74,000 contemporaneously with settlement of the property.
b.If the Applicant has not secure refinancing within 6 weeks and/or the MM Bank is unwilling or unable to remove the business trading as CC Business at Town DD ABN … as security for the home loan owing to MM Bank, Account number …14, then the following orders are invoked and:
i)The Respondent and the Applicant will sign all documents and so all acts to sell the Suburb S property which includes:
1.The property shall be listed for sale with a real estate agent as agreed between the parties and failing agreement as nominated by the Chief Executive of the Real Estate Institute of Queensland with any costs of and incidental to such nomination to be met by the Respondent;
2.The listing price for the property shall be as agreed between the parties and failing agreement, as nominated by a registered valuer in the employ of the Real Estate agent retained with the cost of any such nomination to be met by the Respondent;
3.If a contract for the sale of the property has not been executed within four (4) months from the date of listing the property for sale in accordance with Order 6.a above, then either party may give notice to the other in writing that he or she required the property to be sold by public auction and that sale shall take place adopting the following methodology:
4.the parties shall agree upon the identity of the auctioneer and failing agreement, the auctioneer shall be nominated by the listing agent in Order 6.a. above;
5.the reserve price shall be as agreed between the parties and failing agreement, as nominated by the Auctioneer with the cost of any such nomination to be met by the Respondent;
6.the public auction shall take place no later than eight (8) weeks after instructions are provided to the listing agent to list property for sale by pubic auction;
7.all costs of conducting the auction sale as referred to herein shall be met by the Respondent.
ii)Upon the sale of the Suburb S property, the proceeds of sale shall be disbursed as follows:
1.Firstly, to pay all costs, conditions and expenses of the sale;
2.Secondly, the balance to each party as to 50% to the Applicant and 50% to the Respondent.
Pending completion of Orders 5:
a)The Respondent shall may payment of and indemnify the Applicant in response of all outgoings of the:
i)Suburb S property, including but not limited to mortgage repayments (in respect the MM Bank loan account bearing account number …14), insurance, council rates, land tax, water and sewerage rates and any other municipal charges or outgoings of whatsoever nature;
b)The Applicant and Respondent are restrained from:
i)further encumbering the Suburb S property without the written consent of the other party, including by way of redraw of funds upon the existing loan facilities;
ii)selling or disposing of their interest in the property, without the written consent of the other party.
Motor Vehicles
The Respondent and Applicant shall retain any motor vehicle currently in their possession. The Respondent and Applicant will do all acts and sign all documents as are necessary to transfer to the other party, at the expense of the party who is to retain that particular motor vehicle, all right and interest in that particular motor vehicle.
Personal Possessions
Save for the below listed items, the Applicant and Respondent shall retain their own personal possessions which they held at the time of their separation, and:
a)The Respondent shall collect the bellow listed items from the Applicant contemporaneously with the completion of the sale or refinance confirmation of the Suburb S property:
i)Children’s stationary;
ii)Ms Surry’s stationary;
iii)Candle gifted to Ms Surry from client;
iv)Jewellery cleaning cloths;
v)Blue Pearl;
vi)Gold Bangle;
vii)First Aid Kit;
viii)Sandwich press
b)The Applicant shall collect the below listed items from the Respondent contemporaneously with the completion of the sale or refinance confirmation of the Suburb S property:
i)A share of the children’s artworks
ii)Children’s hand-woven tapestries
iii)Children’s jewellery hand-made by Grandfather
iv)Applicant’s childhood denim jacket and red/white shirt
Unless otherwise specified in these orders, it is declared that:
a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for this purpose:
i)real properties shall be deemed to be in the possession of the person whose name appears on the title of the property;
ii)bank accounts are deemed to be in the possession of the person whose name appears on the bank record thereof;
iii)insurance policies (if any) are deemed to be in the possession of the beneficiary thereof;
iv)superannuation entitlements are deemed to be in the possession of the person who is named as the worker or whose age or working future provides the conditions for payment out of such entitlements; and
b)each party be solely liable for an indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders.
The transferee spouse shall prepare any documents necessary to give effect to the provision of these orders at their cost and further be responsible for the payment of registration fees (if any) in relation to the transfer of any properties into their name.
Any stamp duty payable on transactions arriving from these orders or any document executed pursuant to these orders be paid by the transferee spouse.
The parties shall comply promptly with all requisitions issued by the Office of State Revenue, Land Titles, Main Roads Department and any other government department in relation to any document executed or transacted pursuant to or put into effect the terms and conditions of these orders.
In default of either of the parties hereto complying with any requisition so issued within fourteen (14) days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the said outstanding requisitions and recover from the other party in default the costs and outlays incurred in complying with any of the said requisitions which such costs to be calculated in accordance with the Family Law Rules.
The parties shall sign, execute and deliver all such documents, instruments and writings and shall do all such other acts and things as may be necessary or desirable to give full force and effect of these orders. Should either party default in signing or executing such documents required to give effect to any provision of these Orders, then a Registry Manager of the Family Law Courts of Australia at Brisbane shall be empowered and is hereby irrevocably empowered to sign and execute documents in lieu of the defaulting party or parties pursuant to section 106A of the Family Law Act 1975.
The Applicant will be responsible for the payments for PP Bank, Visa Card, loans to parents.
The Respondent pay the Applicant’s costs.
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Costs
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Procedural Fairness
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