Symons and Symons

[2014] FCCA 1550

FEDERAL CIRCUIT COURT OF AUSTRALIA

SYMONS & SYMONS [2014] FCCA 1550

Catchwords:
FAMILY LAW – Parenting and property dispute – both parties having significant weaknesses – children in serious conflict with each other – family report recommending splitting siblings – report’s recommendations adopted – financial circumstances and dealings of parties largely unclear – insufficiency of evidence – Court doing best it can – equal property division.

Legislation:  

Family Law Act 1975, ss.60CC, 61DA, 75(2), 79(2)

Goode v Goode [2006] FamCA 1346
Stanfordv Stanford [2012] HCA 52

Applicant: MR SYMONS

Respondent: MS SYMONS

File Number: MLC 3283 of 2012

Judgment of: Judge Burchardt

Hearing dates: 8, 9 & 12 May 2014

Date of Last Submission: 12 May 2014

Delivered at: Melbourne

Delivered on: 23 July 2014

REPRESENTATION

Counsel for the Applicant: Mr Scriva

Solicitors for the Applicant: Pasha Legal

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Brennan

Solicitors for the Independent Children’s Lawyer: Victoria Legal Aid

ORDERS

1. That the wife have sole parental responsibility for the child X born (omitted) 2001. 

2. That the husband have sole parental responsibility for the children Y born (omitted) 2005 and Z born (omitted) 2008. 

3. That X live with the wife. 

4. That X spend time with the husband from Friday after school to Sunday at 5:00pm on the first weekend of every month and at other times by arrangement between X and the husband. 

5. That Y and Z live with the husband. 

6. That Y and Z spend each alternate weekend with the wife from Friday after school to Sunday at 5:00pm. 

7. That Y and Z spend time with the wife for half of all school term holidays and the long summer vacation. 

8. That Y and Z spend mother’s day with the wife and father’s day with the husband. 

9. That all three children spend time together on each of their birthdays and on Christmas day. 

10. That the husband, by himself his servants and agents be restrained by injunction from taking any of the children to any doctor, hospital police station of Department of Human Services (“DHS”) for the purpose of making allegations that they have been mistreated by the wife other than at the request of a doctor, police officer of DHS worker. 

11. That the parents by themselves, their servants and agents be restrained by injunction from:

    (a)consuming or being under the influence drugs not in accordance with the prescription of a qualified medical practitioner during the time they have any of the children in their care;

    (b)consuming alcohol to excess or being excessively under the influence of alcohol when the children are in their care;

    (c)allowing the children to be exposed to or witness illicit drug use;

    (d)allowing the children to be subject to any form of physical discipline;

    (e)allowing the children to be exposed to any conflict between the parents;

    (f)denigrating the other parent or member of the other parents family in the presence or hearing of the children. 

12. The mother, father and the children attend for therapeutic family counselling, with such organisation to be nominated by the Independent Children’s Lawyer to:

    (a)address the issues raised in the Family Report dated 20 March 2014; and

    (b)provide the necessary support to the children given the proposed changes and issues remaining.

13. The Independent Children’s Lawyer be at liberty to forward to the therapeutic counsellor a copy of the Orders made and the Family Report dated 20 March 2014.

14. That there be an undertaking by Mr G that he will not consume illicit substances in the mother’s home at any time or in the presence of the children or at any time during any 24 hour period prior to being around the children/in their presence.

15. That the husband retain his half interest in the property situated at Property N (“the Property N property”);

16. That it be declared that the wife has no interest in the Property N property. That within 90 days the wife pay to the husband the sum of $54,000 (“the payment to the husband”). 

17. That upon payment to the husband it be declared that the husband has no interest in Property C (“the Property C property”).

18. That in the event that he wife fails to make the payment to the husband in timely fashion, the Property C property be sold altogether out of Court with the proceeds of sale being distributed in the following order and priority:

    (a)in payment of all legal costs, commissions, and agent expenses (including advertising expenses) in relation to the sale;

    (b)in adjustment of rates and other outgoings in accordance with usual conveyancing practice;

    (c)in discharge of any loans secured by way of mortgage registered on the title of the real property including any outstanding rates and charges;

    (d)$54,000 of the balance of the proceeds in payment to the husband, less any amount the husband has already received from the wife, together with penalty interest on the unpaid amount; and

    (e)the balance of the proceeds in payment to the wife. 

19. That the wife permit the husband to collect the chattels referred to in paragraph 151 of the judgment in this case from the Property C property.

20. Unless otherwise specified in these orders, save and except for the purpose of enforcing the payment of any monies due under these or any subsequent orders, the husband and the wife each be declared the owner at law and in equity absolutely and to the exclusion of the other in accordance with the following:

    (a)each party be solely entitled to all chattels of whatsoever nature and kind including but not limited to motor vehicles, goods, furnishings, household effects and personal effects in the possession or control of such party as at this date;

    (b)each party be solely entitled to all personal property of whatsoever nature and kind including but not limited to any moneys, shares, debentures, investments and choses-in-action and all financial resources which stand in their sole name or to their credit respectively at this date;

    (c)all insurance policies to become the sole property of the beneficiary named therein; and

    (d)all superannuation entitlements to become the sole property of the beneficiary named therein and each party forego all claims he or she may have to any superannuation or work related benefits belonging to or earned by the other. 

21. That except as otherwise provided by these orders, the husband and the wife;

    (a)remain liable for any debts presently in their own name and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation thereto; and

    (b)be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders. 

IT IS NOTED that publication of this judgment under the pseudonym Symons & Symons is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 3283 of 2012

MR SYMONS

Applicant

And

MS SYMONS

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a parenting and property dispute between two mutually embittered parties.  I regret to have to say that it is a slightly dispiriting and tawdry conflict in which both the two primary parties undoubtedly have significant weaknesses.

2. For the reasons that follow, I am going to make the orders proposed by the Independent Children’s Lawyer and I am going to divide the property pool equally between the parties.

Agreed Facts

1. The applicant father was born on (omitted) 1967 and came to Australia from (country omitted) in 1971.  The respondent mother was born on (omitted) 1971 and has always lived in Australia.

2. The mother has deposed (see paragraph 2, affidavit filed 16 April 2012) that the parties commenced cohabitation in 1990 and the husband does not appear to put that assertion significantly in issue.

3. The parties married on (omitted) 2006 and have three children, X born (omitted) 2001, Y born (omitted) 2005 and Z born (omitted) 2008.

4. A separation took place on 26 January 2012 and as the mother deposed in her affidavit filed 16 April 2012, at paragraph 4:

   “At this time I advised the husband that I considered our marriage to be over by leave him a note.”

5. In fact, the note was delivered to the father by X.

6. The father was severely injured in a motor vehicle accident in about June or July 1999 and has not worked ever since.  He appears to have suffered a further injury in July 2001.

7. On any view of the matter the father has been, for many years (although he says he has now stopped) an avid (hobby omitted).  According to his own evidence, he would go out late at night and return early in the morning and sleep during the day.  The (hobby omitted) he (omitted) provided (omitted) which he either sold or used for family consumption.

8. In August 2011, the police attended the then matrimonial home with a search warrant and discovered a marijuana crop that the husband was growing.  The husband has deposed that this marijuana was simply for his own use.  He was convicted and given a suspended jail sentence.

9. The mother admits to being a regular user of illicit drugs in the distant past, but, with one exception, denies more recent usage.

10. The father continues to use very substantial amounts of prescribed drugs for the continuing pain in his back which prevents him from leading a full life.  The mother returned to the former matrimonial home on 28 January 2012 and the father left the home on 30 March 2012.  He took the children with him to a property in Property N that the father had bought together with a family friend, Mr G, who is the godfather of Z. Following the preparation of a family report on 15 October 2012, and psychiatric evaluations by Dr D filed 2 November 2012, to both of which it will be necessary to return, final orders were made by consent on 3 December 2012.  Those orders provided for the children to live with the mother and spend time with the father.

11. On 10 December 2012, an incident occurred at the mother’s home (see exhibit ICL1 – DHS file).  Although it is clear, beyond doubt, that a person called “Mr M” in the DHS file (who appears to be Mr M) was severely substance affected and present at the mother’s house at that time, in the ultimate, DHS decided the children were not at risk of harm in the mother’s care.  The significance of this incident, however, will become apparent when I return to the narrative in due course.

The Procedural History and Methodology to be Adopted

1. I propose to deal with this in a little more detail before turning to the evidence in the case more generally.

2. It should be noted that the florid nature of the disagreement between the parents as to what has occurred, taken in conjunction with the difficulties the mother faced as a self-represented advocate, has made the evidentiary picture in this case extremely confused.  At the commencement of the case, all parties requested that the family report writer give evidence before the matter proceeded at all and I acceded to this request.  This judgment will follow a similar template.  I will deal with the two family reports and the evidence of Mr E, the report writer, and the evidence of Dr D (referred to in this proceeding though Dr D was not required to do a follow up report or to give evidence), before coming to the frequently unsatisfactory evidence given by the parties themselves.

3. As earlier indicated, the mother’s application was filed on 16 April 2012.  In her accompanying affidavit, she set out some of the history to which I have already referred and complained, in her supporting affidavit, of not seeing the children since 30 March 2012.

4. Initial interim orders were made following a section 11F report on 3 May 2012 and these were further refined on 22 August 2012.  On that date, the Court ordered the preparation of a family report.

5. As I have already noted, following the preparation of that report and the reports of Dr D, the matter settled by final orders made on 3 December 2012 which I have already referred to.

6. The tranche of litigation now before the Court was commenced by an initiating application of the father’s filed on 10 May 2013.  It seeks that Y and Z live with the father and that X live with the father, at paragraph 2: “…if she consents to the same” and that all time spent by the mother be supervised by the DHS.  Ancillary orders relating to drug testing were also sought.

7. Leaving aside a litany of complaints about the mother’s capacity as a parent, the point that should be noted in the father’s supporting affidavit filed 10 May 2013 is the assertion at paragraph 28 that:

   “I have also been told by one of the Wife’s estranged acquaintances, Mr B that the Wife and Mr G have previously and continued to use illicit drugs regularly.  Mr B has also told me that the wife and Mr G had contacted Mr B and asked for him to supply illicit drugs to them.”

8. The affidavit went on to depose that there were videos of drug use available.

9. Mr B filed an affidavit in support on 15 May 2013.  He deposed to both the mother and Mr G using illicit drugs on a regular basis and purported to annex to his affidavit text messages, some of which were plainly sent in the middle of the night, from the mother to him, allegedly proving drug use.

10. Given that the father has, at least in part, asserted that he brought his application to the Court because of the information received from Mr B, (who I understand to be Mr M’s brother) it is disconcerting that Mr B was not called to give evidence.  I was informed by the father in the witness box that Mr B had told him (the father) that he did not wish to be involved.

The Evidence of Dr D

1. I am dealing with Dr D’s 2012 reports because the Independent Children’s Lawyer submitted that these reports were still important background and, with respect, I agree.

2. I note that the assessment of Mr Symons stated (at page 9 of 22):

   “He appeared to function in the low-average intellectual range.  His speech was monotonous but quite deliberate.  His mood state was normal and reactive but he conveyed the potential to becoming strong emotionally.  He did not present with signs of a mental disorder.  He showed no insight into the foundations of the relationships’ demise.  He didn’t recognise any personal contribution.  Rather, he attributed blame to Ms Symons and he wondered if she had an affair.  He didn’t present as a very sophisticated man.  It appeared that the children were being actively caught in the middle of a complex dynamic between the parties.  He seemed to be considerate of the children’s best interests, but the decision making regarding their living situation appeared to be poorly planned and considered.”

3. Dr D noted that Mr Symons admitted smoking cannabis a few years previously, when he found it helped with pain relief, but asserted that he had not used cannabis for over 12 months since his conviction in 2011, for which, as I have noted earlier, he received a suspended sentence.  I note that Mr Symons admitted a substantial criminal history as a young man and a four year prison sentence in his early twenties.

4. Dr D noted the father’s very extensive history as a (hobby omitted).  He conceded that the (hobby omitted) was considered (omitted) and was an illegal practice.  Dr D noted that it was difficult to follow the chain of events following separation and concluded (at page 14 of 22):

   “Mr Symons does not appear to have carefully and thoughtfully considered the planned move to Property N (sic).  He perhaps naively thought that given he apparently received approval from Ms Symons and that the arrangement would be satisfactory.  The result appears to have been very troubled and difficult for the children.  Communication has broken down.  They require a form of couple counselling to improve relations and facilitate more open communication.  Attendance at a Post-Separation Parenting Program may also be helpful. 

   I could not identify any specific mental disorder in need of psychiatric treatment.”

5. The assessment of Ms Symons commences relevantly (at page 16 of 22):

   “Ms Symons presented as a finely built and mildly gaunt woman dressed in neat attire.  She had long thinning hair.  She was pleasant and gently mannered.  She appeared mildly anxious, somewhat timid and insecure.  She impressed as functioning in a low-average intellectual range.  Her speech was monotonous.  Her mood state was flat and limited in reactivity but not depressed.”

6. Dr D noted that Ms Symons admitted using illicit drugs from age 11 to 20 (in the context of a most unfortunate childhood).  She had commenced a relationship with the father when he was in (omitted) Prison for an offence of violence and she was attracted to him because he was “rough and tough and he had a reputation in (omitted).” (at page 18 of 22).

7. Having detailed Ms Symons’ account of events Dr D concluded (at page 20 of 22):

   “Ms Symons is a 41 year-old woman.  She was raised in particularly traumatic and difficult conditions.  Her mother was chronically alcohol dependant and was consistently unavailable, neglectful and emotionally distant.  Her father was mostly absent.  She did not form a meaningful bond with either parent.  Her maternal grandmother primarily parented her until age 8 and then an elder half-sister supported her.  She struggled in school and appears to have a specific learning disorder as evidenced by significant literacy deficits. She also missed considerable school due to childhood leukaemia.  She left school at the completion of primary school and worked in factories until 2001.  She acquired a pattern of substantial amphetamine and cannabis use in her early adolescence, and this problem persisted until she formed a relationship with Mr Symons in her late adolescence.  She denied a history of illicit drug use in her adulthood.  Despite these considerable childhood difficulties, she appears to have been relatively psychologically resilient. She has not acquired a formal psychiatric history, and she appears to have generally been relatively mentally stable.  She possibly experienced a period of Post-Natal Depression after X was born, but in the context of being stressed caring for Mr Symons whilst he recovered from injuries, and coping with being a first time mother.  She has also experienced anxiety and stress post-separation in 2012.  She has suffered and felt quite sad and anxious being separated from her children.

   Ms Symons’ mental state was mostly unremarkable.  She seemed to be relatively passive and I suspect she is insecure and has a dependant-avoidant personality type.  This personality style is understandable in light of her childhood experiences.  She formed a co-dependant relationship with Mr Symons and she felt relatively helpless in asserting herself.  This problem was also engendered as she experienced Mr Symons as a domineering and inconsiderate partner.”

8. Dr D continued (on page 21 of 22):

   “Whilst I was satisfied that Ms Symons endeavoured to provide an unbiased account, I sensed there were certain filtered elements.  It would seem that the children were caught in the difficult and inappropriate position of contributing to dialogue centred on parenting arrangements.  It was difficult to follow the chain of conversations and decisions that ultimately led to a change in living arrangements.”

9. Dr D continued (on page 22 of 22):

   “Ms Symons presented as a grieving mother yearning to have contact with her children.  She highlighted that she had been the children’s primary carer, and she had been provided minimal support from Mr Symons, particularly given his preference to (hobby omitted).  She presented as a fairly naïve woman struggling to assert herself and sought (sic) out her life.  She hoped that the children could live with her and have regular contact with Mr Symons.  This would appear to be problematic whilst they live so far apart and whilst she cannot drive. Communication has dissolved and will not improve if both parties don’t respect and value the need to maintain relations in the children’s interests and needs.  They may both benefit from attending a Post-Separation Parenting Program. 

   Ms Symons gained very limited parental modelling during her upbringing.  This assessment is limited in its capacity to assess her parenting style and capacity, but based on the lack of positive modelling alone, there may be some deficits that needs addressing through some parenting counselling. 

   Ms Symons does not present with features of an active mental disorder.  There is no indication that she requires psychiatric intervention.”

The 2012 Report of Mr E

1. This report was created at a time when the children were living predominantly with their father, pursuant to court orders made in May 2012.  It has self evidently been somewhat overtaken by events.  It noted allegations raised by X in respect of alleged problematic treatment from her mother and her siblings and allegations of violence by the father.  The report noted that the allegations of violence allegedly perpetrated by the father on X had been recently investigated by DHS who had reservations about the nature of X’s comments and chose not to take any official action.

2. I note that even at that early stage the mother was asserting that the father was manipulating the children adversely against spending time with her.  She also asserted that the father was using the children to hurt her.

3. Despite her earlier concessions as to drug use, “she was adamant however, that she has not used any drugs for ‘21 years’.” (at paragraph 28, page 9).

4. Mr E noted the extremely poor interpersonal relationship between the parents.  He also noted that the letter from the mother to the father at the time of separation had clearly been read by X.  X disavowed various allegations made against her mother.  In view of the matters disclosed by both parents there had certainly been some measure of physical discipline upon the children inflicted by both parents in the past.

5. X was adamant that she wished to live with her mother and Y clearly preferred to live with his father.  Y described the parents arguing and yelling but said that they did not hit each other.  Mr E noted the difficulties arising from the radically different factual histories given by each of the parents.  He noted the psychiatric difficulties they had confronted reported by Dr D.  I note that at paragraphs 70-71, Mr E said:

   “It would therefore appear that both parents have been able to demonstrate an historical level of involvement with and capacity to care for the children.

   Despite the differences in the parental accounts, it would seem that historically, Ms Symons had the more prominent role in the provision of the day-to-day care of the children.”

6. Mr E recommended a parenting course for both parents given their difficulties.  He went on to recommend that the children should live primarily with their mother and spend regular overnight time with their father.

Mr E’s report dated 20 March 2014

1. Mr E noted the lengthy history of the matter.  His report runs to some 56 pages and is self-evidently comprehensive and I will only take out of it some of the more important matters that have arisen.

2. Mr E noted (at paragraph 10) that following orders made by consent on 3 December 2012 for the children to live primarily with their mother and spend regular overnight time with their father, the father was injured in an accident at home (he fell off the roof), which resulted in the children being prematurely placed with her.  The report traversed the events of December 2012 whereby the mother was the subject of DHS and police intervention, following which she was permitted to take the family home provided that Mr G lived with her.

3. The report noted that while Y and Z continued to spend regular time with their father, X ceased all time following the Christmas of 2012-13 Christmas holidays.  The report noted allegations of bruising as the result of possible physical abuse when in the mother and Mr G’s care.

4. The report noted that each parent was seeking that all three children live with them, although the father noted that X would be opposed to such an arrangement.  At paragraph 18 Mr E noted the numerous difficulties that the case has given rise to including a heightened level of conflict displayed between the siblings as well as between the boys and their mother.  The report noted (at paragraph 23) that the mother is still of the view that the father is intent on financially and emotionally exhausting and ruining her, this being a matter to which reference was made in the earlier report.  She and Mr G adamantly denied being in a relationship.

5. On this occasion the mother acknowledged that she had used marijuana in early December 2012 during the incident that resulted in her being transported to hospital (the DHS/police intervention).  Mr G acknowledged past use of Ice and marijuana but denied any in the last three years.  The mother described extremely disturbing behaviour exhibited by both boys but particularly Y.  Y has been in considerable trouble at school, swearing at teachers and throwing articles at school staff.  Y has been referred to a school counsellor as has X.

6. The father continued his assertions of drug use on the part of the mother and Mr G, his concerns that the children were being physically abused in the mother’s care and the report noted that he acknowledged the numerous reports he has made to DHS, police and other entities.

7. The report traverses the litany of complaints that each of the parents has to make about the other.

8. I note that Mr E consulted with Ms C, a family services practitioner with Anglicare who has been working with the family since October 2013 following a referral from DHS.  Mr E recorded (at paragraph 44):

   “She understands that DHS has now ceased its involvement, as it is not concerned about the children’s well-being whilst in their mother’s care.  She further understands that DHS perceives there may have been a “malicious” component to the many reports that have been made about the children.”

9. Mr E noted that Ms C thought that, in general, the mother was capable of responding well to the children’s needs.

10. Mr E noted that the relationship between the parents appeared to have deteriorated since the previous assessment.  He noted that X is finding life more positive since living with her mother, though he noted (at paragraph 51) that there were arguments between the mother and X in which they both swore and yelled.  X was, however, insistent that her mother had not hit her.

11. X told Mr E that while her mother had yelled at her brothers when they misbehaved she had never hit them (at paragraph 54).  She also denied any physical discipline by Mr G.  She noted the problematic relationship between X and her brothers and in particular the extremely bad language used by Y (at paragraphs 56 and 57).  At paragraph 59, Mr E recorded:

    “X also explained that she made a decision to cease spending time with her father in January 2013, because “he hammered me about how mum hated me and how he didn’t love me and didn’t care and that I should never have been born and how he was saying he didn’t want a daughter any more. This is true. I remember it like it was yesterday. I did not want to go back.”

12. X recorded at paragraph 59 an occasion when she decided to approach the father about staying overnight which did not eventuate, this being, as it were, an occasion on which X was prepared to give him another chance.

13. Y confirmed the difficulties he was having living with his mother and the violence that pertains between him and X.  He was, however, clear that neither his mother nor Mr G had smacked him.  He confirmed that his mother yells and swears at him.

14. On the other side of the ledger, Y was generally highly complimentary about the regime with his father and expressed a clear wish to live with him.

15. Z, being much younger, was interviewed less extensively although he did express a desire to live with his father.

16. Having noted some matters which the mother had, very creditably, sought to deal with, Mr E observed at paragraph 82:

    “Despite these positive signs, it was apparent to the writer that Ms Symons has struggled emotionally to manage the highly challenging behaviours exhibited by all three children.  Her comments about their behaviours, and especially in relation to the boys, would suggest that at times the home environment has been quite chaotic and has been characterised by highly conflicted sibling behaviour where verbal and physical aggression between them has occurred.  Whilst it appears that Ms Symons has not reacted to this behaviour by becoming physically aggressive, it nevertheless seems that she has in many cases disconnected herself from the behaviour.  For example, in July 2013, she informed the writer that her tendency was not to intervene at all when the boys were being physically destructive of the home.  Instead, she explained that she would simply clean up the ensuing mess when the children were either in bed or at school.”

17. Having noted some of the father’s concerns about the mother, Mr E continued at paragraphs 84-85:

    “In the case of Mr Symons, it was quite apparent that he regards Ms Symons as incapable of providing the children with an appropriate parenting experience.  In addition, he believes that the concerns about her care of the children are significant enough to warrant their time with her being supervised by DHS or a professional person.  The writer therefore believes that Mr Symons would experience a range of challenges in being able to positively support the children spending time with their mother or having a constructive relationship with her. 

    In addition, it would appear that at the very least, Mr Symons is hyper vigilant and sensitive to any adverse comments made by the boys about what might be occurring within their home environment.  By his own acknowledgement, he has frequently reported his concerns to relevant authorities and until recently, had taken the boys to various professionals because of such matters.  It would seem that in the absence of a functioning parental relationship, he has found it particularly difficult to ‘filter’ comments made to him by the boys and to appropriately discern their credibility, as he is convinced that Ms Symons and Mr G are incapable of providing a safe environment for the children.”

    The allegations made by Ms Symons about Mr Symons adversely influencing the children and encouraging them to misbehave within the family home are particularly concerning, and would further suggest to the writer that Mr Symons would not be able to support the boys in having an appropriate relationship with their mother.  If accurate, they would indicate Mr Symons has, in many respects, engaged in a concerted campaign to create significant disruptions within the maternal home, which would adversely reflect on Ms Symons’ parenting role and her relationship with the children and reinforce their alignment with his views.  In addition, such activity from him would create an expectation within the boys that their behaviour would be acceptable to their father and would result in them achieving their desired outcome of living with him.  The writer would encourage Mr Symons to consider the implications of his actions if it is deemed by the Court that he has acted in the manner suggested by Ms Symons.”

18. The report went on to note a mirror view on the part of the mother about the father’s capacity to encourage the children’s relationship with him and noted at paragraph 90:

    “The parental relationship appears to have significantly deteriorated since the writer previously interviewed them.  The writer therefore has little confidence that Mr Symons and Ms Symons will be able to effectively benefit from attending programs to assist them in co-parenting the children or in constructively sharing parental responsibility for them at this stage.  The Court may therefore need to consider vesting primary parental decision making responsibility in one parent, as opposed to sharing parental responsibility.  If this was to occur, the writer would suggest primary parental responsibility should be exercised by the parent with whom the children are living on a primary basis.”

19. Having noted the various difficulties that have obtained under the extant orders, in short, Mr E recommended X live primarily with the mother and Y and Z live primarily with the father.  I note that Mr E was not able to find that the children’s point of view had been definitively the result of adverse manipulation by the father.  Nonetheless, if this was the reason for the matter (at paragraph 106):

    “…such recommendations might also result in the boys being further manipulated by their father and encouraged not to have a positive relationship with their mother.  The writer would suggest however, that such recommendations simply reflect the unfortunate reality that has emerged within the primary living arrangements for both Y and Z. As previously mentioned, if such arrangements were to continue, the writer would foresee escalating conflict within the home between the boys and their sister, as well as between the boys and their mother.  This would have the potential to further undermine their emotional well-being and have the potential to expose them to physically dangerous situations.”

20. Despite the opposition of all three children to seeing the non-resident parent, Mr E recommended a spend time regime for X, Y and Z.

The Oral Evidence of Mr E

1. As earlier indicated, at the request of the parties, Mr E was called at the very inception of the case.  He adopted his reports and his section 11F report of 1 August 2013.

2. Under cross-examination by counsel for the father, Mr E said that he now recommended splitting the siblings because of the changes in circumstances that had occurred.  It was not a decision taken lightly and it was not Mr E’s view in 2012.  The problems between X and Y were the reason for the change, and Mr E noted the high level of conflict between these two children.  Counsel naturally enough took Mr E to various parts of his report which reflected poorly on the mother, noting the drug use in 2012, the attending of hospital and the DHS requirement that Mr G supervise. Although pressed, Mr E was clear that his report recorded what the children had actually said to him.

3. Mr E expressed concerns as to whether the father would foment relationships with the mother.  Mr E was in favour of time with the mother and said the children would need it for their longer term benefit.  He had no firm view of whether the father was in fact poisoning the children’s views about the mother but noted they had a strong relationship with him.  The boys respect the father who is an authority figure for them and are likely to do what he says.

4. Under cross-examination by counsel for the Independent Children’s Lawyer, Mr E emphasised the chaos in the family home, the physical aggression between siblings and the fact that they did not enjoy living together.  In response to a question as to whether the orders he proposed should be made even if they were the result of misconduct on the part of the father, he replied in the affirmative.  He said he would not wish to reward to condone the father’s behaviour but still felt that the changes he recommended should take place.  The mother is overwhelmed and there are considerable problems at school.

5. Mr E was not sure whether the weekly counselling proposed would address their behaviour.  He found this a hard question to answer because he did not know what sort of counselling they were presently undergoing.  He confirmed that the mother says she has no physical reaction to the boys’ conduct but simply cleans up the mess when they are at school or not awake.  He said it would be a major concern if Z were to be suspended because he is still in his first term of prep.

6. Under cross-examination by the mother (I permitted her to go last given her self-representation), Mr E conceded it was always possible the children had been told what to say and that he was alert to this possibility.  He said that what the boys had told him was not much different from what the mother had said and that the boys did not accuse their mother of violence or taking drugs.  He said he would have expected such accusations if the boys had been coached.  He noted that Y had conceded there were problems with him at school.

7. Under re-examination by Ms Brennan, Mr E confirmed that the children would abide by what the father said they have to do but that he was not sure that the father would support time with the mother.

The Affidavit and Oral Evidence of the Parents

1. When I said, at the commencement of these reasons for judgment, that this was a somewhat distressing and tawdry conflict, it was largely to this area of the case that I was referring.  The parties have filed numerous affidavits in which they articulate in great detail the very many bad things they have to say about one another.

2. Both of them have allegations that the other is involved with people who have extensive criminal histories.  Both of the parents assert both historical and ongoing interaction with people involved in drugs.  The mother asserts that the father traffics in drugs and the father asserts that the mother associates with people who do so and is a regular user herself.

3. The mother continues her claims that the father has set out to effectively annihilate her through the curial process and more generally, to get back at her.  The father by way of contrast accuses the mother of violence to the children, perpetrated by both the mother and Mr G, and of general incompetence as a parent. 

4. Given that both parents notably lack insight, and as observed by Dr D face a number of intellectual and social challenges, and were in addition at least in parts very unconvincing witnesses, I do not propose to traverse their evidence in any greater detail than the paraphrase that follows, which picks up only on some aspects of what each of the primary witnesses had to say that seems to me to be of particular significance.  Given the circumstances this case will be substantially decided on the objective evidence.

5. Under cross-examination by counsel for the Independent Children’s Lawyer the father stuck by his assertions that the mother still uses drugs, and emphasised the fact that the mother had admitted to Mr E taking drugs despite her previous denials of usage.

6. The father was asked why he had seen fit to take photographs of the two boys (photographs with a number of bruises which meet the description by Mr E of the father being hyper‑vigilant) and was extremely evasive in his answers as to why it had been necessary to take these photographs.

7. The father said that he had told the children to go to the police if they were frightened, but said that he was not suggesting that anybody in particular might be giving rise to such fright.  This answer was palpably unbelievable.  Likewise his assertion that the blistering on one of the child’s heels shows neglect on the mother’s part is plainly ludicrously overstated.

8. The father’s answers under cross-examination confirmed the extremely negative view he has of the mother as expressed in his affidavits.

9. The father did concede that X’s lack of desire to see him was concerning.  He had conceded she might require counselling as a teenager, and hoped that this could all start as soon as possible and that time might be phased in.  He said words to the effect “we’ve got to start somewhere” and that concession does him credit.

10. When asked if the mother was a good mother, the father said she had her faults but was not a bad mother.  He said she needed professional help to control her emotions. 

11. He confirmed that he is seeing a psychiatrist to cope with X’s position about not seeing him.  He said he would encourage the children to spend time with their mother, and that after reading Mr E’s report he had a more developed understanding (my words) as to the desirability of their spending time with her.  This aspect of his evidence was given with some measure of conviction.

12. He said that he had been to a Parenting Orders Programme, and this had helped him a lot.

13. Under cross-examination by the mother he traversed the events of the mother’s departure from the family home, and continued to deny seeking to alienate the children.

14. The father was cross-examined about an incident in 2013 when X had been prepared to go and visit her father, but he did not turn up.  It seems clear that the event happened as X appears to have indicated to Mr E.

15. The father had said he simply did not remember this incident which took place around about Easter 2013. 

1. The father confirmed that he (hobby omitted) three to four nights per week, and would go out after 9pm and be back before breakfast.  How this interrelates with his alleged disability rather escapes me. 

2. The father’s answers in relation to property issues seem to me to be reasonable and measured.  I will return to those later.

3. Under further questioning by counsel for the Independent Children’s Lawyer the father admitted that there had been an occasion where he had failed to see X because he could not fit her in, and that he conceded she would be upset.  He said he would have to take the first step to correct this error.

4. The mother, perhaps understandably given the strain referred to in Mr E’s report and the difficulties of self-representation, was frequently labile when putting questions to the father. She commenced her evidence by concentrating on the incident when X tried and failed to see the father. 

5. As with the father some of the mother’s answers were very difficult to accept.  It is apparent that she regards the father as having an ongoing desire to ruin her, and that she sees him as a threatening and manipulative figure.  Her evidence was given under very considerable pressure of speech.  The mother’s evidence was in large part self‑exculpatory.  She conceded that she yells very loudly at the children.  She conceded also that Mr B was “off his face on drugs” during the December 2012 incident, but said that he had consumed these drugs with the father.

6. The mother’s answers to questions put to her about the incident in December 2012 where there was constant reference to crushed glass in the mouth were wholly unbelievable.  The mother’s assertion that she had been injured by glass at the age of 16 or 17 and that glass was still, as it were, emerging from time to time from her skin only has to be heard to be thought to be somewhat unlikely.  I note that the notes of the social worker who interviewed the mother and Mr B on this occasion show quite clearly that both of them in her view were drug affected at the time.  While I am not able to say exactly what was occurring there is no question that something extremely strange occurred.

7. The mother’s responses to questions about the video showing Mr G consuming Ice provoked a response that this would have occurred because the (omitted hobby) group in which Mr G and the father were involved were all drug consumers.

8. The mother’s assertion that the father fell off a ladder in December 2012 deliberately so that he could be taken to hospital to have an alibi for criminal conduct, whilst obviously sincerely felt, was wholly unbelievable.

9. Cross-examination by counsel for the Independent Children’s Lawyer only went to confirm the chaotic and unsatisfactory nature of the dynamic between the children at the mother’s home.

The Evidence of Mr G

1. Mr G’s evidence can equally be paraphrased somewhat generally.  He has known the family for about 10 years and is a godfather to Z.  He was previously a (hobby omitted) partner of the father, and was very good friends with him.  He now described the father as manipulative and harsh towards the mother and the children.  He said that he had been good friends with Mr B previously, but this was no longer the case.

2. Essentially the evidence of Mr G, which confirmed that the video showing him taking Ice took place four to five years ago, was likewise filled with some aspects that verged upon the absurd.  The dark suggestions of threats of violence and conspiracy on the part of the father strike me as having the slightly exaggerated element that so characterised the evidence in this case as a whole.

3. The assertion made by Mr G that the video shown in court might have been edited in some way once again is just another instance of this.

4. Under cross-examination by the Independent Children’s Lawyer, Mr G repeated his denials of a present relationship.

The Evidence of Ms B

1. Ms B is a teacher at the children’s school, and once again it is not necessary to traverse her evidence in detail.  She confirmed the significant difficulties with Y and equally with X.

Some Findings About Some of the Relevant Facts

1. I do not propose to deal with each and every lurid assertion passing between the parties because in many ways the relevant matters in this case are clear and within a confined context.  These observations will, however, perhaps deal with some of the matters to which it may be necessary to return when considering the statutory pathway. 

2. These parties met a time when the father’s criminal career was apparently at its peak.  He was serving a relatively extended period in jail.  The father unquestionably had a criminal past, and he was convicted quite recently for growing a substantial crop of marijuana.  He is plainly still involved in criminal activities.

3. The mother had no complaint to make about the father’s criminal history at the time of the start of the relationship, and indeed this was even an attraction to her.  I find her assertion that she was unaware of the father’s marijuana cultivation utterly unconvincing.  Its scale and size must have been apparent.

4. Both these people have been heavily involved with a crowd who go (hobby omitted) who are also, it is quite plain, serial drug users.  Both have had recent close contact with Mr B.  I have not heard or seen Mr B give evidence, but I regret to say that it is quite obvious on the materials filed that he is a bad hat on either side’s version of him.  Mr M is apparently given to frequent consumption of illicit substances, and was sufficiently affected to be clearly noted in the December 2012 incident.

5. The fact that the parties have seen fit to consort with such individuals speaks volumes.  Even Mr G, who impressed me as a relatively straightforward witness (in a case where the standard was not high generally), is a past drug user.  I accept that he and the mother are not in a relationship.  The evidence Mr G gave about this was compelling.  The interaction he has had with this family is however curious.  He was plainly helping the father when the father bought the property at Property N, and he is now fully aligned with the mother.

6. Despite all the numerous allegations it is reasonably clear that there has not been significant violence inflicted by either parent or Mr G on the children.

7. Both these parents have faced considerable emotional and intellectual challenges as described in the reports particularly of Dr D and Mr E. 

The Statutory Pathway

1. The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:-

   “Summary

   [65] In summary, the amendments to Pt VII have the following effect:

   1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests 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 interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends and holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.

   11. The child’s best interests remain the overriding consideration.”

The Application of a Pathway

1. Counsel for the Independent Children’s Lawyer submitted that the presumption of shared parental responsibility was rebuttable pursuant to s.61DA of the Family Law Act 1975 (“the Act”).  That position was also adopted by the father whose submissions closely mirrored those of the Independent Children’s Lawyer.

2. In this case counsel submitted that the presumption should be rebutted as being not in the children’s best interests.  It was pointed out that there has been family violence and in particular between the two children X and Y.

3. I note that Mr E, who has had extensive experience with this family now, does not recommend equal share parental responsibility.  He recommends rather that each child be the responsibility of the parent with whom they primarily live.

4. Although the matter is stated shortly the force of this submission is quite overwhelming.  Mr E’s evidence was given within the area of his professional competence.  He was not, in truth, significantly challenged about this aspect of what he had to say.  I should make it plain that I accept the entirety of his evidence and the force of his reports.

5. Although this puts the matter in a sense back to front, it is equally plain that X should live with her mother and Y and Z should live with their father as Mr E recommends.

6. Equal time is not sought by anybody and would be impracticable in any event given the distance between the parties’ residences.  It is also contraindicated by the report and recommendations of Mr E.

7. Substantial and significant time is equally impossible and for the same reasons.

8. This brings the Court to consideration of the children’s best interest by reference to the matters contained in s.60CC of the Act.

The Primary Considerations

1. Nobody suggests that it is anything other than in the best interests of these children to have a meaningful relationship with each of their parents. The difficulty is the family violence that obtains between X and in particular Y. Family violence is a matter to which I should give greater emphasis pursuant to s.60CC(2A).

The Additional Considerations Section 60CC(3)(a)

1. Here the children have expressed strong views.  Mr E has described X as, in effect, a young girl who is well mature enough to express a clear view.  Although Y is younger, once again his views are clear.  Although the position in relation to Z is more opaque, the overall position is that the children wish in the case of X to live with their mother and in the case of the two boys with their father.  Their views clearly must be given some weight.

Section 60CC(3)(b)

1. X has a close and well-formed bond with her mother despite their occasional arguments from time to time which appear to have been predominantly provoked by X’s interaction with her brothers, and Y in particular.  I have not dealt with the serious allegations made by X against her mother from time to time as in my view they are now of historical interest only given the current situation.

2. X is adamant that she does not want to spend any time with her father and it is clear that at the present time that relationship is fractured.  There does not appear to be significant evidence as to X’s relationship with extended family members.

3. The position in respect of Y appears to be somewhat the obverse.  He has a very close relationship with his father, as does Z.  Nonetheless, both of these children according to Mr E, interact sufficiently well with the mother to spend time with her.  Likewise, there is no evidence to suggest anything of any moment in relation to extended family members.

Section 60CC(3)(c)

1. In a sense both parents are open to criticism under this heading.  I note the father’s failure to follow through with X’s tentative attempt at a rapprochement in 2013.  Although both parents obviously have various deficiencies as parents I do not think that this subsection merits great weight in the circumstances.

Section 60CC(3)(ca)

1. Once again both parents are open to a measure of criticism in this regard.  The children have missed a lot of time off school while in the mother’s care.  The father spent substantial portions of the marriage (hobby omitted) all night and sleeping all day.  Nonetheless in the ultimate the evidence appears to suggest that both parents are, at the very least, within the range of competency when it comes to parenting and this section likewise does not achieve great weight.

Subparagraph 60CC(3)(d)

1. This is the decisive matter in this case.  All the evidence and material filed point overwhelmingly to the desirability of separating X from Y and Z as soon as practicable.  Violence is already occurring and further violence is highly likely.  As the children get bigger this will only become more disruptive and dangerous and detrimental to their best interests.  Although the point can be stated shortly, it is necessary if for that reason alone, that the two boys live with their father and X live with her mother.  This will remove the aggravation and violence that is occurring in the children’s lives.  It will diminish the arguments in the mother’s household.  It will almost certainly improve Y and Z’s behaviour and, indeed, that of X at school.  That is what this case is all about and this is the answer to it.

Section 60CC(3)(e)

1. Given how far the children live apart orders will have to be crafted that avoid equal time or substantial and significant time.  These are simply impracticable and in the context of the parties’ strained financial circumstances probably difficult in any event.

Section 60CC(3)(f)

1. Although both parents are scarcely optimal in their capacity to care for the children and to provide for their needs, the evidence of Mr E suggests that both are satisfactory.

Section 60CC(3)(g)

1. I have already had comment to make about the lifestyle and background and maturity of the parties.  Both these parents struck me as being somewhat immature and certainly their backgrounds and lifestyles leave much to be desired.  The fact is however that they are the children’s parents and in the end the considerations that arise under this heading are not such as to make the orders that I intend to make inappropriate.

Section 60CC(3)(h)

1. Irrelevant in this case.

Section 60CC(3)(i)

1. Although this is plainly a relevant matter it has really been canvassed already.  The attitude to the children on the part of the father leaves an enormous amount to be desired.  I have no doubt that he has indeed sought to alienate the children from their mother and in particular the two boys.  It is to be hoped that when reading this judgment he comes to realise that seeking to poison the children against their mother is very seriously detrimental to their best interests.  On the part of the mother I have already said enough about her deficiencies.

Section 60CC(3)(j)

1. There has plainly been family violence in the conflict between the children.  There does not appear to have been anything significant as to family violence inflicted either by each of the parents upon each other or upon the children.  The yelling and screaming that prevailed between the parents however would have been extremely damaging to the children who clearly overheard some of it.

Section 60CC(3)(k)

1. This matter does not now appear to be of any significance.

Section 60CC(3)(l)

1. The orders I am going to make are the least likely to lead to the institution of further proceedings.

Section 60CC(3)(m)

1. Although it is a matter of repetition, it is important to emphasise that the outcome in relation to children’s issues is essentially driven by the need to have the primary residences as I have described them.  I have however as I have indicated accepted Mr E’s recommendations and accordingly the spend time regime he proposes as being in the best interests of the children will be the ones that I will make.

The Property Issues- the Affidavit Evidence

1. Property matters is scattered about in the parties’ affidavit material.  The mother did not even seek property orders in her initiating application.  The father’s response sought only that the mother return a Holden Commodore.

2. In his first affidavit filed 30 April 2012 the father deposed as to the employment by both the parties during the early years of the relationship.  He also deposed (at paragraph 26) that following the death of his own mother in (omitted) 1999 the parties continued to live “at the (omitted) house following the deaths of the Wife’s father and my mother.”

3. At paragraph 34 of the same affidavit the father deposed that the parties had approximately $120,000 saved in a joint savings bank account by 2001.

4. At paragraph 59 the husband deposed that the approximate value in the joint savings account at the time of separation was $162,000.  References to the former matrimonial home in Property C are in this affidavit but there is nothing to indicate its cost of purchase or value, save that it was bought in approximately 2003.

5. In his affidavit filed 8 June 2012 the father dealt with his desire for the return of personal property from the applicant’s residence but this in the circumstances takes the matter no further.

6. The mother’s affidavit filed 5 November 2012 confirms the purchase date of the property at Property C but otherwise, apart from detailing the activities of the parties during the marriage, has no information about property issues.

7. In his affidavit filed 19 November 2012 the father deposes to the purchase of his residential home in Property N, but offered no information as to the circumstances or price of the purchase.  The orders made by Sullivan FM as he then was on 3 December 2012 not unsurprisingly had no property orders in them.

1. The next initiating application lodged by the father on 10 May 2013 likewise did not seek any property orders.  His affidavit in support did not touch on property issues at all. 

2. It was the wife’s response filed 21 June 2013 that first raised property matters in terms.  She sought that she retain the property in Property C solely, and that she have exclusive use and occupation of it.  In her affidavit filed in support on 21 June 2013 she deposed that the parties had moved into her home in (omitted) in about 1998.  She deposed that that property was the principal asset of the father’s estate and was left in equal shares to the mother and her sister.  She borrowed $125,000 from the (omitted) Bank to pay out her sister’s half share.

3. The (omitted) property was sold for $482,200 in 2003, and after discharging the mortgage of approximately $100,000 at that time there was $376,000 left.  The mother deposed that those were applied to the Property C property which cost $402,000 with the balance from savings that the mother asserted she had accumulated during the relationship.  The mother deposed to the party’s employment noting the necessarily limited employment of the father given his injuries.

4. The mother deposed that at the time of separation the father transferred his interest in the Property C property to her and that she paid $162,750 to him to buy that out which she withdrew from her (omitted) Bank account.  She deposed on a hearsay basis that the father had applied his share to buy a half-share of the property in Property N with Mr G.  She deposed that the father had retained a Nissan (omitted) which he claimed was stolen, for which the mother said he received $40,000 by way of insurance.  She deposed to substantial legal expenses in the sum of over $63,000.

5. The wife’s financial statement showed the Property C property unencumbered at a value of $450,000, no superannuation, and $65,412 in liabilities of which $63,412 were to her former solicitors. 

6. The father’s reply filed 12 July 2013 sought the return of various chattels, and valuations of the Property C and Property N properties.  His financial statement filed the same day showed property owned by the father in the sum of $490,700 and liabilities of $113,000 as an estimate.  The financial statement asserted half ownership of the properties both at Property N and Property C to a total value of $485,000, and a Holden car worth $4,500.  He has no superannuation and a mortgage of $113,000.

7. In his affidavit filed 12 July 2013 the father returned again to the question of assets and liabilities.  He deposed that the stolen Nissan (omitted) was written off and the payment received as sale price was $2,700.  Exhibit 1 to that affidavit appears to confirm that that is the case.  The father went on to depose as to the matrimonial home.  His account was in some parts similar to that of the mother.  He confirmed the purchase out of the mother’s sister’s interest in the former family home in about 2000.  He deposed to a mortgage of $130,000 as a result, and its repayment over five years in equal contributions from the parties.  He confirmed that the house was sold for $482,000 in about 2003, and said that the Property C home was bought for $406,000 with the remainder of $76,000 deposited into a joint bank account.  He said that the parties had approximately $100,000 in their bank account at that time.

8. The father deposed as to the death of the paternal grandmother in 1999, and an inheritance of about $80,000 deposited into the party’s joint savings account.  He deposed again as to his accident in 2001, and a lump sum payment of about $7,000 or $8,000 deposited into the joint account thereafter.

9. It is immediately apparent that to the extent that there may have been a loan for about $130,000 in 2000, its repayment by 2005 can scarcely have been made by equal contributions from the parties if the husband was not really working after 2001.

10. The husband confirmed that the wife had bought out his share in the Property C home for about $162,400 in about January 2012.

11. The father bought his home in Property N for $265,500 in about March or April 2012.  He had insufficient funds with which to purchase it, and according to him he and Mr G borrowed about $114,000 to do so, and were registered as joint owners. 

12. Although the affidavit is not entirely clear it seems that the father took steps to buy out Mr G’s interest but this has not, in fact, occurred. 

The Oral Evidence about Property Matters.

1. Little was said about property in the hearing before the Court.  So far as I recall the mother did not cross examine on this issue at all (understandably given the stress she was under).

2. Counsel for the father had stressed in opening that the mother had borrowed $85,000 of which she had given $35,000 to Mr G.  He put the mortgage at $110,000 on the Property N property and valued the Property C property at $370,000.  This is substantially less than its purchase price.

3. Under cross-examination the mother conceded that the father had inherited $70,000 and asserted that she gave the father $160,000 when he transferred the Property C home to her.  She said she gave him all the money in the bank ($160,000 as I understood it), but then said she gave him $200,000.  She conceded that TAC had given the father two lump sum payments of $8,000 and $3,000 respectively.  She also asserted that the father, in addition to the $162,000 from the joint savings account, had taken $16,000 from a children’s deposit account because he needed the money.

4. She said that the father had not worked since 1994 because he was looking after his mother and obtained a carer’s allowance.  She confirmed that she had paid her solicitor some $87,500.  She had borrowed $165,000 of which $80,000 were for her.  She had borrowed $15,000 from Mr G and had applied all of these funds to her legal costs. 

5. The mother confirmed that according to her there were no possessions of the father’s inside the house.  There were some boxes in the garage, some chain saws, two safes, a compressor and tools. 

6. The above is scarcely a well settled and secure basis to make findings to enable the Court to make property orders.

The First Step – Should the Court Make Property Orders at All

1. The High Court in the case of Stanford v Stanford [2012] HCA 52 has made it clear that the first step is for the Court to decide whether it is appropriate to make an order altering the party’s legal and equitable interest in property pursuant to s.79(2) of the Act, and the Court must identify the party’s legal and equitable interests to do so.

2. The High Court, however, also made it clear that in most cases this preliminary step will be relatively straightforward given the breakdown of the relationship, and that is plainly the case here.  This, therefore, leads the Court to the conventional four-step methodology.

The Property Pool

1. The property pool is ill-defined. Both sides have filed rather rudimentary financial statements.  Counsel for the father submitted that the property pool consists of:

   ·House in Property N valued $265,000, mortgage $110,000, husband’s net equity half share $77,000;

   ·Property C property agreed value $370,000, mortgage $165,000.

   ·The husband’s chattels set out in annexure A to his reply filed 12 July 2013.

2. The wife has not meaningfully contested this assertion.

3. I have no information of any sort as to the party’s superannuation, if any, and the value of any cars or chattels owned by them remains wholly unclear.

4. It should be noted that counsel for the father submitted that the wife was entitled to, in effect, half of the $200,000 net equity in the Property C home, and should be paid this with the remainder to go to the husband.

Contributions

1. This was a lengthy relationship in which both parties contributed in my view equally.  The mother did undoubtedly receive substantial inheritances, but these were as counsel submitted a long time ago and the husband also received a substantial inheritance.  It is not now possible to disaggregate as it were the net ultimate outcome by reference to events so long ago.  It must be said, however, that the initial inheritance on the part of the wife was what got these parties started and gave them the capacity to own property at all.

2. The father expressly conceded under cross-examination that the mother had been a good worker, and up until the time at the very least of his accident in 2001 the husband contributed also.  Thereafter he received TAC payments.

3. In my view the additional contributions made by the mother who was clearly the primary carer of the children in addition to her work would ordinarily ground a five per cent loading in her favour notwithstanding the father’s contribution by way of provision of (omitted) to the property and monies obtained from sale of (omitted).  That is because the (hobby omitted) activities of the father must have cost a considerable amount of money in any event, and there is no evidence to suggest that it was run at a net profit that the Court would find sufficiently convincing to accept.

Section 75(2) Factors

1. The father is in poor health even though I retain doubts as to whether it is anything like as bad as he says.  He will have the care of two of the three children for the foreseeable future. 

2. The mother has not re-partnered, and will have the ongoing care of X.  Her future employment prospects remain entirely unclear, and I am by no means in a position to make any conclusive findings as to her health and prospects generally.  Ordinarily there would be a five per cent adjustment in my view properly in the father’s favour.

Just and Equitable

1. The reality is that the net equity in the Property C home is about $200,000, and the net equity in the Property N property for these purposes is $77,000 being a total of $277,000.  An equal division of these amounts would mean a payment to the husband of about $138,500. 

2. On any view of the matter, however, the issue is more complicated than that.  It seems clear to me that whatever the exact figure was, the mother paid out the father approximately $162,000 to purchase the father’s interest in the Property C home. The mother’s evidence about additional cash either paid by her or abstracted by the father post-separation is insufficiently clearly made out (no bank records, for example, were tendered) to be accepted. This was, in part, a matter of her giving him the party’s combined savings.  There is no evidence as to what the value of the property was at the time this payment was made, but given the current reduced valuation it is unlikely to have been much more.  Accordingly, doing the best I can in an utterly imperfect evidentiary landscape, the real total to be divided is $270,000 plus $162,000, i.e. $432,000. Half each is $216,000, of which the father has already received $162,000.

3. The fact that the parties have conducted their affairs as they have done post-separation speaks volumes for the slightly chaotic circumstances in which they have been.  In my view it would not be just and equitable to adjust the parties property interests by reference to the position as it obtains on the ground now, but rather as it stood at the time of separation.  This would reflect an outcome rewarding the parties for what they did during the relationship, and leaving to one side what appeared to have been some problematic financial decisions made thereafter.  There is no really clear picture as to what happened to the balance of the $162,000 that the father clearly did not invest into the Property N property.

4. In my view in the particular and unusual circumstances of this case the proper order the Court should make to do justice and equity in relation to the party’s financial contributions and future needs is to order that the mother pay the father the sum of $54,000, this giving him a total of $216,000 (see paragraph 165 above). I will give the mother 90 days to make this payment failing which orders for the sale of the Property C property will need to be made as the father seeks.

5. Each party will retain chattels in their possession (save for the chattels referred to in paragraph 151) and any superannuation unless the parties otherwise agree. There is simply insufficient evidence to adjudicate this aspect of the parties’ dispute.

Conclusion

1. I have drawn up orders to give effect to these reasons for judgment and will give the opportunity to the parties to make any submissions arising therefrom.

I certify that the preceding one hundred and sixty-nine (169) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  23 July 2014