TABBERT & TABBERT
[2015] FamCA 609
•28 July 2015
FAMILY COURT OF AUSTRALIA
| TABBERT & TABBERT | [2015] FamCA 609 |
| FAMILY LAW – CHILDREN – Final Orders – Finding of family violence by the father against the mother – Where the mother and the mother’s daughter of a previous relationship made allegations of sexual abuse committed by the father which are unsupported by evidence – Where the father denies all allegations of sexual abuse – Where the mother has unilaterally changed the child’s residence and school – Where the mother has a history of failing to facilitate time or communication between the child and the father – Finding that the father does not present an unacceptable risk to the child – Ordered that the child live with the mother and spend unsupervised time with the father for alternate weekends and half of school holidays and time on special occasions – Parents to have equal shared parental responsibility in relation to changes to the child’s residence. FAMILY LAW – PROPERTY – Final Orders – Where the parties were self-represented at trial and very little of the cross-examination was directed to property settlement issues – Where |
| Defence Force Retirement and Death Benefits Act 1973 (Cth) Family Law Act 1975 (Cth) |
Family Law (Superannuation) Regulations 2001 (Cth)
| Biltoft and Biltoft (1995) FLC 92-614 Cahill and Cahill (2006) FLC 93-253 Coghlan and Coghlan (2005) FLC 93-220 Edwards & Edwards (2009) FLC 93-409 Glover & Glover (No 2) [2009] FamCA 411 M v M (1988) 166 CLR 69 Treloar & Treloar (No 2) [2007] FamCA 1127 Trott and Trott (2006) FLC 93-263 |
| APPLICANT: | Mr Tabbert |
| RESPONDENT: | Ms Tabbert |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Justine Lilley |
| FILE NUMBER: | BRC | 11114 | of | 2011 |
| DATE DELIVERED: | 28 July 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 3 and 4 November 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person | |
| COUNSEL FOR THE RESPONDENT: | In person | |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle | |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
IT IS ORDERED:
PARENTING
That all previous parenting plans and interim parenting orders relating to time and communication be discharged.
Where the child shall live and parental responsibility
That the child, B born … 2004 (“the child”), live with the Mother.
That the Father and the Mother are to have equal shared parental responsibility for decisions relating to relocating the child’s residence which would have the effect that existing parenting arrangements become impracticable and as to changing the child’s name.
That except as otherwise stated, the Mother shall have sole parental responsibility for the major long-term issues of the child.
Except in an emergent situation, prior to making any long-term decision in relation to matters for which the Mother has sole parental responsibility:
(a)the Mother will give the Father at least twenty-eight (28) days written notice of the decision she proposes to make and the basis for her proposed decision;
(b)the Father will respond to the Mother in writing if he wishes to suggest any variation or alternative proposal within fourteen (14) days of receiving the Mother’s notice;
(c)the Mother will consider any feedback given by the Father by reference to the best interests of the child; and
(d)the Mother will make any final decision concerning the major long-term issue and will inform the Father of her decision in writing within seven (7) days.
That notwithstanding the provisions of paragraphs (3) and (4):
(a)the Mother shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with the Mother; and
(b)the Father shall be responsible for the daily care, welfare and development of the child when he is living with or spending time with the Father.
Time with the Father
The child is to spend time with the Father at all reasonable times as agreed between the parents and failing agreement as follows:
(a)commencing Friday 7 August 2015, each alternate weekend from after school (or 3:30 pm if it is a non-school day or the child is sick) Friday until 4:30 pm Saturday for two (2) visits; and then
(b) commencing Friday 4 September 2015, each alternate weekend from after school (or 3:30 pm if it is a non-school day or the child is sick) Friday until 4:30 pm Sunday.
School holidays
(c)for the June/July and September/October Queensland gazetted school holiday periods, the Father’s alternate weekend time shall continue pursuant to paragraph (7)(b);
(d)commencing in 2015, for the first half of the Queensland gazetted Christmas School holiday period and in each alternate year thereafter;
(e) commencing in 2016, for the second half of the Queensland gazetted Christmas School holiday period and in each alternate year thereafter.
For the purposes of these Orders, the Christmas school holiday time shall commence:
(a)when a parent’s time falls in the first half of the holidays, from after school on the day the school term finishes and conclude at 5:00 pm on the day calculated to be half of the holidays;
(b) when a parent’s time falls in the second half of the holidays from 5:00 pm on the day calculated to represent half of the holidays and shall end at 9:00 am on the day the school term recommences; and
(c)school holidays shall be deemed to commence at close of school on the day the school terms finishes and conclude at 9:00 am on the day the child returns to school and the total number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the Father shall retain the additional night.
Special days
That notwithstanding any previous orders, the child shall spend time with his parents on special occasions as follows:
(a) Easter:
i. with the Father from after school (or 3:30 pm if it is a non-school day or the child is sick) on the Thursday before Good Friday until 4:30 pm on Easter Monday in 2016 and each alternate year thereafter;
ii.with the Mother from after school (or 3:30 pm if it is a non-school day or the child is sick) on the Thursday before Good Friday until 4:30 pm on Easter Monday in 2017 and each alternate year thereafter;
(b) on the birthday of the child, if a non-school day, with the parent he is not living with on the day, from 1:00 pm to 6:00 pm.
(c) with the Mother on the Mother’s Day weekend from after school (or 3:30 pm if it is a non-school day or the child is sick) on the Friday before Mother’s Day until 4:30 pm on Mother’s Day and if that is a weekend that the Mother would not ordinarily spend time with the child then the Mother shall forego the next weekend of time;
(d) with the Father on the Father’s Day weekend from after school (or 3:30 pm if it is a non-school day or the child is sick) on the Friday before Father’s Day until 4:30 pm on Father’s Day.
Telephone and other electronic communication
That the child shall communicate with the parent in whose care he is not on the telephone and via email or other electronic means at such times as the child reasonably requests and the parent in whose care the child is shall facilitate this.
That within fourteen (14) days of these Orders, the Father is to purchase a
pre-paid mobile telephone to be given to the child for the purposes of the child communicating with the Father between 6:30 pm and 7:30 pm each Monday and Wednesday, with the Father to initiate the calls to that telephone. The Father is to provide additional credit for the telephone as needed.
The Mother is to use her best endeavours to ensure that the mobile telephone given to the child:
(a) is charged and available to receive the Father’s calls as provided for in paragraph (11) hereof; and
(b)is not used for any purpose other than for telephone/electronic communication between the child and his Father pursuant to these Orders.
In relation to telephone communication the parents shall:
(a) ensure that the child is available to receive the telephone call;
(b) arrange for the child to telephone the other parent on the following night if, for any unforeseen circumstance the child misses the telephone call from the Father; and
(c)ensure that the child has privacy during the conversation.
Changeovers
That changeovers shall occur on the following basis, unless otherwise agreed between the parents in writing:
(a) changeovers occurring before or after school shall occur at the child’s school;
(b)all other changeovers shall occur at the F Contact Centre at G Town;
(c)in the event the F Contact Centre is unavailable at the time changeover is due to occur there, and the parents are unable to agree (in writing) upon an alternative place of changeover, then changeover shall occur inside the G Town Police Station.
Communication
That the Mother and Father shall:
(a)keep the other parent informed at all times of a contact address, email address and telephone number and advise each other of any change within twenty-four (24) hours of such change;
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent; and
(d)inform the other parent as soon as reasonably practicable of any specialist, optometrist, dental and other medical/therapy appointments for the child, so that each parent may be at liberty to attend such appointment.
That the parties do all acts and things necessary to arrange for the child’s ongoing attendance at the C School, D Town for the remainder of his primary schooling and that the parents be restrained and an injunction hereby issued restraining them from enrolling the child in any other primary school without the written consent of the other parent.
That neither parent is to enrol the child in any extra-curricular activities which impact on the time the child is to spend with the other parent, without the written consent of the other parent.
That the parents authorise, by this Order, the schools or extra-curricular providers attended by the child to give each parent information about the child’s education, progress and other school or extra-curricular related activities and supply them with copies of school reports photographs, certificates and awards obtained by the child (at that parent’s cost).
Subject to the conditions imposed by the child’s school, these Orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.
That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c) not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
The parties are at liberty to provide the child’s school with a copy of these Orders.
Child’s counselling
That the parents do all acts and things necessary to facilitate the child’s ongoing attendance upon Mr E or another similarly qualified therapist or counsellor for the purposes of counselling as directed by Mr E (or such other therapist or counsellor) for as long as therapeutically indicated.
That the Independent Children’s Lawyer be granted leave pursuant to
section 121 of the Family Law Act 1975 (Cth) to publish to the child’s therapist Mr E (or other therapist or counsellor who provides therapy for the child from time to time), a copy of these Orders and the Reasons for Judgment of the Honourable Justice Kent delivered on 28 July 2015.
Other
That in the event that there is a dispute about the child or about the interpretation, implementation or enforcement of these Orders, before making any further application to a Court the parents shall:
(a)either attend counselling or mediation with an organisation recognised under the Family Law Act 1975 (Cth) or by the Commonwealth Attorney-General; or
(b)participate in family dispute resolution with a family relationship centre or a person authorised under section 10G of the Family Law Act 1975 (Cth).
Parenting orders program
That in the event a party has not already completed a parenting orders program, that within seven (7) days of the date of service upon them of these Orders, they shall contact the parenting orders program coordinator (or nominee) for intake into the program and shall complete the program as soon as practicable thereafter.
That the parties shall comply with any reasonable direction of the program
coordinator and in particular:
(a)attend as requested for the purposes of assessment as to whether they are suitable for participation in the program;
(b)advise the program coordinator of their contact telephone number and advise the program coordinator of any change in that number;
(c)attend and participate in the program as requested including attending referrals to treating health professionals as recommended by the program coordinator provided that either party may refuse at their election to participate in joint sessions;
(d)attend a triple p parenting program or equivalent parenting program as nominated by the program coordinator;
(e)attend an anger management counselling program as nominated by the program coordinator.
That for the purposes of the program:
(a)the parties shall supply to the program coordinator a copy of these Orders; and
(b)the parties are at liberty to supply to the program coordinator a copy of any reports that have been prepared in the course of any proceedings that resulted in the parenting orders.
IT IS FURTHER ORDERED:
Pursuant to section 65L of the Family Law Act 1975 (Cth) the Director of Child Dispute Services of the Brisbane Registry of this Court is requested to arrange for a Family Consultant to assist the child and the parties with the child spending time with, and communicating with, the Father as provided for in these Orders.
Both parents shall do all acts and things reasonably necessary to comply with any reasonable directions or requests made by the Family Consultant including, in the case of the Mother, that the child attends such appointment or appointments as are arranged by the Family Consultant and for such duration as the Family Consultant nominates or requests so as to assist the Independent Children’s Lawyer in informing the child about these Orders and Reasons for Judgment.
The Family Consultant is authorised pursuant to section 65L of the Family Law Act 1975 (Cth) to supervise the compliance by each party with these Orders and otherwise to render such assistance as reasonably requested by either party.
That the Independent Children’s Lawyer be discharged once the child has been informed of the Orders.
That all outstanding parenting applications be dismissed.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
PROPERTY ORDERS
That within fourteen (14) days of these Orders the Applicant, Mr Tabbert, transfer to the Respondent, Ms Tabbert, all of his right, title and interest in and to the Japanese motor vehicle registration number … and the Applicant shall indemnify the Respondent and keep her indemnified with respect to any debt including the Macquarie Leasing debt relating to the said vehicle.
That within fourteen (14) days of the date of these Orders the Applicant shall make available to the Respondent for collection at her cost the industrial sewing machine and the 1999 trailer registration number … free of any encumbrance.
That otherwise each party shall retain, to the exclusion of the other, all other property and chattels of whatsoever nature and kind in the possession of such party including any bank or investment accounts, insurance policy entitlements, superannuation not otherwise specifically referred to and dealt with by these Orders, chattels, vehicles, furniture and personalty not specifically referred to herein free of any further claim by the other party.
Each party shall be solely liable for, and indemnify the other party with respect to, all debts, tax liabilities, credit card debts and personal loans in his or her respective name.
Superannuation splitting order – H Super Scheme
The Applicant, Mr Tabbert, shall FORTHWITH serve upon the Trustees of the H Super Scheme a copy of this superannuation splitting order.
Subject to and conditional upon the Trustees of the H Super Scheme seeking, within twenty-one (21) days of the date of these Orders, to be heard as to the form of the following Orders (and in that respect the Trustees have liberty to apply), the following Orders shall take effect on and from twenty-one (21) days from the date of these Orders, that is, on and from 19 August 2015 (“the operative date”):
(a)In accordance with section 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment within the meaning of section 90MT becomes payable to or on behalf of the Applicant, Mr Tabbert, from his interest in the H Super Scheme (“the Fund”), the Respondent Ms Tabbert, is entitled to be paid by the Trustees of the Fund an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000.00) and there is a corresponding reduction in the entitlement Mr Tabbert would have had but for these Orders;
(b) The operative time for the preceding order is four (4) business days after the operative date;
(c) These Orders are binding on the Trustees of the H Super Scheme;
(d)There be liberty to apply to each party and the Trustees of the H Super Scheme in relation to the implementation of the Orders affecting the superannuation interest of Mr Tabbert.
Superannuation splitting order – Mr I Tabbert Super Fund
The Applicant, Mr Tabbert, shall FORTHWITH serve upon the Trustees of the Mr I Tabbert Super Fund a copy of this superannuation splitting order.
Subject to and conditional upon the Trustees of the Mr I Tabbert Super Fund seeking, within twenty-one (21) days of the date of these Orders, to be heard as to the form of the following Orders (and in that respect the Trustees have liberty to apply), the following Orders shall take effect on and from twenty-one (21) days from the date of these Orders, that is, on and from 19 August 2015 (“the operative date”):
(a) In accordance with section 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment within the meaning of section 90MT becomes payable to or on behalf of the Applicant, Mr Tabbert, from his interest in the Mr I Tabbert Super Fund (“the Fund”), the Respondent Ms Tabbert, is entitled to be paid by the Trustees of the Fund an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount of FIFTY THOUSAND DOLLARS ($50,000.00) and there is a corresponding reduction in the entitlement Mr Tabbert would have had but for these Orders;
(b) The operative time for the preceding order is four (4) business days after the operative date;
(c) These Orders are binding on the Trustees of the Mr I Tabbert Super Fund;
(d) There be liberty to apply to each party and the Trustees of the Mr I Tabbert Super Fund in relation to the implementation of the Orders affecting the superannuation interest of Mr Tabbert.
Authority to execute documents
That in the event that a party (“the defaulting party”) has refused or neglected to do any act or thing or sign any document, deed or instrument necessary to give effect to these Orders, then within seven (7) days of being requested in writing to do so by the other party pursuant to section 106A of the Family Law Act 1975 (Cth):
(a) The Registrar is appointed to forthwith execute in the name of the defaulting party any document, deed or instrument necessary to give validity and operation to that document, deed or instrument;
(b) An affidavit of the non-defaulting party shall be sufficient proof to the Registrar of the defaulting party’s refusal or neglect referred to;
(c) The execution of the document, deed or instrument has the same force and validity as if it had been executed by the defaulting party;
(d) Unless the defaulting party can show good cause otherwise, the defaulting party shall pay the non-defaulting party’s costs of and incidental to the default on an indemnity basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tabbert & Tabbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 11114 of 2011
| Mr Tabbert |
Applicant
And
| Ms Tabbert |
Respondent
REASONS FOR JUDGMENT
Mr Tabbert (born in 1973 and aged 42 years) (“the father”) and Ms Tabbert (born in 1971 and aged 44 years) (“the mother”) commenced a relationship in early 2003; began cohabiting shortly thereafter; married in 2005; and finally separated in August 2011 ending a cohabitation of about eight years.
The relationship produced one child, B, born in 2004 who is now 11 years of age.
Each of the parents and the Independent Children’s Lawyer (“ICL”) appointed to independently represent the child’s interests in the proceedings seek parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
An important issue to be determined in the parenting proceedings is the time the child should spend with the father and whether such time should be supervised.
The father and mother also seek final orders for property settlement pursuant to s 79 of the Act. As will be discussed, the only remaining asset of any significant value comprises the father’s superannuation interests. Whilst each party sought a splitting order in favour of the mother, neither party (each of whom were self-represented) agitated in final submissions for a particular amount in such an order, each party contending that the Court should determine the appropriate amount.
Relevant background
The parents met in J Town in early 2003. At that time the father was employed as a technician with the defence force and the mother was working in the service industry. As noted, the parents began cohabitating sometime after commencing a relationship in early 2003. In or around late 2003/early 2004 the parties moved from J Town to K Town, where the father was posted with the defence force, with the mother’s four children from other relationships. The father’s daughters from an earlier relationship remained living with their mother in J Town. As already noted, the child was born in 2004 and is the only child of the relationship.
As will be discussed further below, both parents have personality vulnerabilities. The father displays features of obsessional compulsive personality disorder and the mother displays symptoms consistent with borderline personality disorder.
The mother had a compromised childhood during which the mother was raised by her stepfather (after her own mother left her and her siblings when the mother was only 11 years old) and the mother also spent time in foster care before leaving home at age 15.
The mother has a significant history of depression and anxiety and reportedly attempted suicide when she was 16. In April 2011 the mother was diagnosed with adult ADHD and was prescribed Duromine.
The mother also has a pattern of unstable relationships. The mother’s five children, including the child, are from five different fathers. The circumstances pertaining to each child may be summarised as follows:
·The oldest child, Mr L (now aged about 26), was the result of an alleged rape of the mother by the mother’s stepfather, who suicided when Mr L was 10 years old. Mr L lives independently and has minimal contact with the mother, apparently due to his continued contact with the father.
·The next child, a girl named Ms M (now aged approximately 24 years), lives independently. The mother separated from Ms M’s father, a convicted paedophile, when Ms M was two years old. The mother believes that he sexually abused Ms M too, although Ms M was too young to give evidence during his trial.
·The third child, Ms N (now approximately 19). The mother separated from Ms N’s father following his imprisonment when she was pregnant with Ms N. Their relationship continued after his initial release from prison, however he allegedly became violent toward the mother and later returned to prison for parole violations. He died in prison. Ms N herself has had a child.
·The next child, O (now approximately 13 years) lives with the mother and spends time with his father during school holidays. The mother contends that she did not live with O’s father and they ended their relationship when O was two years old. The mother maintains she has a good relationship with O’s father.
·The subject child of these proceedings, the child B (11), currently lives with the mother and O.
Further, it appears that the mother encountered significant difficulties dealing with the children during their adolescence which resulted in each of Mr L and Ms M leaving home for 12 months apparently because the mother would not allow them to return to the home for a 12 month period if they decided to leave for any time. Both Mr L and Ms M, respectively, did decide to leave and thus each of them were not allowed to return for a 12 month period.
The father was employed by the defence force throughout the relationship. As a by-product of his employment, the father spent various periods away from home during the relationship and the mother was the primary caregiver and homemaker. In 2004 the mother established a business from home called “P Pty Ltd” which supplied products mainly via sales over the internet.
Toward the end of the relationship the father spent approximately six weeks in the USA, returning in June/July 2011. Subsequently, on 6 August 2011 an incident of family violence arose between the parents which resulted in the mother being briefly hospitalised and obtaining a two year protection order against the father. The father maintains that he left the former matrimonial home shortly thereafter on 11 August 2011. As will be discussed, in May/June 2014 the father was charged by Queensland Police with assault occasioning bodily harm as a result of the family violence incident on 6 August 2011 and the mother also instituted personal injury proceedings against the father in July 2014 with respect to that incident.
Following separation in September 2011 the mother initially moved to rental accommodation with the child and her children and the father moved into marital accommodation provided by the defence force. Between August 2011 and early October 2011 the father had regular contact with the child taking him to and from school and having him for three nights during the September 2011 school holidays. In September/ October 2011 the parents had sexual relations. The mother maintains that the father raped her on this occasion. As will be discussed, the father disputes this and maintains it was consensual. The mother subsequently withheld the child from contact, causing the father to commence these proceedings.
In about January 2012 the mother relocated with the children, including the child, from K Town to Q Town; and then in June/July 2012 the mother again relocated from Q Town to the G Town area. Each of those relocations impacted upon the interim orders made from time to time for the child to spend time with the father. Both occurred without the advance knowledge or consent of the father.
Procedural history
The father commenced parenting proceedings by way of his Initiating Application filed in the (as previously known) Federal Magistrates Court on 9 December 2011. On 13 February 2012 Federal Magistrate Howard (as his Honour then was) made interim parenting orders for the child to live with the mother and spend supervised time with the father at a contact centre for up to two hours twice each week. A notation was made on those orders that the Court consider unsupervised time at the next mention.
On 15 May 2012 the mother commenced property proceedings in the Federal Magistrates Court by way of her Amended Response seeking both final parenting and property orders. The parenting orders sought, inter alia, for the mother to have sole parental responsibility for the child; for the child to live with the mother and spend supervised time with the father each alternate weekend at a contact centre.
With respect to property, the mother sought final orders which provided, inter alia, for the Court to make a splitting order to the mother out of the father’s H Super Scheme; for the mother to retain the jointly owned Japanese motor vehicle; for the father to retain his 4WD motor vehicle and his various motorcycles; and for the father pay half the parties’ joint credit card debts.
On 16 May 2012 Federal Magistrate Howard made interim orders with respect to parenting and property that provided, inter alia, for all previous parenting orders to be discharged; for the parties to have equal shared parenting responsibility for the child; for the child to live with the mother and spend time with the father each alternate weekend from after school Thursday to before school Monday; for the child to have telephone contact with the father between 6.30 pm and 7.30 pm each Monday, Wednesday and Friday; for the father to continue seeing a psychologist twice a week regarding psychological and anger management issues; for the parties to undergo a psychiatric assessment; for the father to pay the mother $1,500.00 to assist with her accommodation needs to ensure smooth operation of the parenting orders; and for the parties to attend a conciliation conference.
Dr R, psychiatrist, undertook the ordered psychiatric assessment of each parent and her reports are in evidence. Neither parent, nor the ICL, required Dr R for cross-examination and her unchallenged opinions are accepted and will be further discussed.
The father had unsupervised time with the child in accordance with the
16 May 2012 orders until 2 August 2012 when the mother did not provide the child for changeover. The father was subsequently informed by his solicitor that the mother had made allegations that the father, on an unknown date, had sexually assaulted her daughter Ms N. It later transpired that the mother, without reference to the father, relocated from Q Town to G Town in July 2012 where she enrolled the child in C School.
On 16 August 2012 the father filed a Response to the mother’s Amended Initiating Application seeking, in summary, final parenting orders that the child live with the parties on a week about basis; and final property orders that a base amount of such amount as the Court considers just and equitable be allocated, pursuant to s 90MT(4) of the Act, to the mother out of the father’s interest in the H Super Scheme; that the parties sell their two motor vehicles and divide the net proceeds of sale equally; and that each party retain all property in their possession and be liable for their own respective debts.
On 24 October 2012, Federal Magistrate Howard made further interim orders by consent that provided, inter alia, for the father’s time with the child to revert to supervised time at the K Town Contact Centre for up to three hours each weekend; for the matter to be transferred to the Family Court; for the parties to undertake a parenting orders program; and for the mother to attend a mental health professional for counselling to address the issues raised in the psychiatric report of Dr R. It was noted on those orders that the matter was only transferred to this Court “… because of the submissions made on 24 October 2012 by the Independent Children’s Lawyer that the transfer should occur and noting that on 24 October 2012 it was for the first time brought to the Court’s attention the existence of the mother’s daughters [sic] allegation that she was raped by the father in these proceedings.”
These proceedings were originally set down for final hearing for three days commencing on 3 February 2014. However, on 3 February 2014 the mother failed to appear and forwarded a medical certificate to the Court stating that she was unwell and suffers from ADHD, PTSD and has several health problems causing her to have difficulty in filing paperwork with the Court. On that occasion I delivered Ex Tempore Reasons for Judgment and made interim parenting orders; inter alia; that the child live with the mother and have supervised time with the father; that an updated family report be prepared; and that the proceedings be set down for trial for two days commencing 28 April 2014. However, due to the unavailability of the family report writer, the proceedings were again adjourned and relisted for final hearing commencing 3 November 2014.
The orders made on 3 February 2014 provided for the parents to have equal shared parental responsibility for the child; that the child live with the mother and spend time with the father at the G Town Contact Centre for up to three hours each week/weekend, with the mother to deliver the child for changeover; that the child have telephone communication with the father between 6.30 pm and 7.00 pm each Monday, Wednesday and Friday; that the parents undergo a parenting orders program; that the father attend upon a psychologist twice a week in relation to any psychological issues including anger management issues; that the mother provide the ICL various details about the child’s current treating psychologist, with the ICL to inform the parents as to which psychologist the ICL proposes the child continue counselling/therapy with in the future; the mother be restrained by injunction from taking the child to see any other counsellor/psychologist than that nominated by the ICL; that the mother attend upon a qualified mental health professional for counselling to address the issues raised in Dr R’s report of 17 September 2012; that an updated family report be prepared; that the parties arrange for the child’s ongoing attendance at C School, and that the parents be restrained from enrolling the child in any other school without the written consent of the ICL.
On 1 May 2014 interviews were scheduled for the preparation of the further updated family report. I record that on that occasion the mother failed to attend with the child and thereby limited the scope of the report and thus the evidence available to the Court at the final trial. Only interviews with the father took place. That report was subsequently released to all parties on 6 May 2014.
On 14 July 2014 Registrar Brooks made orders in chambers that the proceedings be relisted for final hearing for two days commencing 3 November 2014. On 6 August 2014 Registrar Brooks made various orders for the filing of material for trial. The following notations appear on those orders:
1.Both parties confirmed they do not require [Dr R] for cross examination.
2. The mother advised she will attempt to attend the trial.
3.The Mother advised she has been receving [sic] treatment for post-traumatic stress disorder and kidney problems and anticipates being able to confirm her ability to attend the trial at the next mention date.
4.The Honourable Justice Kent made orders on 3 February 2014 that the Father and / or Independent Children’s Lawyer can seek the matter proceed on an undefended basis in the event the mother fails to attend at the trial.
On 1 October 2014 the proceedings came before Registrar Brooks for a compliance hearing. On that occasion Registrar Brooks again ordered that the matter be set down for final hearing on 3 November 2014. Further, the following notations appear on those orders:
1.Both parties reconfirmed their prior advice that they do not require [Dr R] for cross examination.
2.The Mother advised that she can see no reason why she would be unable to attend the trial as scheduled.
3.The Honourable Justice Kent made order [sic] on the 3 February 2014 that the Father or Independent Children’s Lawyer can seek the matter proceed on an undefended basis in the event the Mother fails to attend at the trial.
Current parenting arrangements/compliance with interim parenting orders of 3 February 2014
B’s time and communication with the father
I record at the outset that the mother has a long history of failing to facilitate time or communication between the child and the father. I do not accept contentions by the mother to the effect that such failures are wholly the result of the child expressing views. For reasons which will be further discussed, I am satisfied that the child has aligned himself with the mother and that it is more likely than not that she has acquiesced at any time when the child has expressed any reluctance or unwillingness to spend time with the father, rather than actively causing the child to attend for visits.
It is the father’s position, which I accept, that prior to the making of the interim orders of 3 February 2014 the mother withheld the child from contact on at least seven occasions between February 2013 and June 2013. Further, the father maintains that the mother will do whatever she can to impede the telephone calls, including, not answering the telephone, serving dinner during the call period, and listening to the telephone calls on speaker and telling the child what to say.
The mother denied that she was present during the calls and states that the calls are on speaker because the child does not like holding the telephone to his ear. I do not accept that, in light of the child’s own statements to the family report writer as recorded in her reports to be discussed.
Pursuant to the orders of 3 February 2014 noted above, the child currently lives with the mother and is meant to spend supervised time with the father for up to three hours each week/weekend at the G Town Contact Centre and have telephone contact on Monday, Wednesday and Friday between 6.30 pm and 7.00 pm.
However, since those orders were made the father has had minimal time with the child as the mother has repeatedly failed to provide the child for changeover at the contact centre and also failed to facilitate telephone calls. In accordance with the terms of the interim orders of 3 February 2014, the mother was to provide the father a telephone number for him to communicate with the child within three days of the orders. However, the father deposes that he has had no telephone communication with the child during 2014 because the mother has failed to give him a telephone number.[1] I accept the father’s evidence in this regard.
[1] Father’s affidavit filed 18 September 2014 at paragraph 14.
The father deposes that he commenced spending time with the child at the G Town Contact Centre on 22 February 2014. It appears that the father’s time, in large part, occurred in accordance with the orders until 28 June 2014 (save for one visit over the Easter weekend when the contact centre was closed and the mother would not agree to reschedule). At paragraph 9 of his affidavit filed 18 September 2014 the father deposes that during his visit with the child on 28 June 2014, the child became frustrated while playing with the Lego and again while playing a game of air hockey. During the game of air hockey the child was allegedly reminded to behave and not damage the equipment at the contact centre which caused him to become withdrawn and he “closed down emotionally and refused to talk with anybody”. The father contends that as this was five minutes before the conclusion of the visit he found it hard to say good bye to the child.[2]
[2] Father’s affidavit filed 18 September 2014 at paragraph 9.
The father deposes that at the following three visits, scheduled for 12 July 2014, 26 July 2014 and 9 August 2014, on each occasion he attended the Contact Centre and was advised by the staff that the child would not be attending and was not provided a reason. On the mother’s account, she and the child attended the Centre on 12 July 2014, 26 July 2014 and on 9 August 2014 for contact however on each occasion the child did not want to spend time with the father and upon the staff speaking with the child it was the staff who cancelled the session.[3] The father deposes that he cancelled the visit scheduled for 23 August 2014 as he was unable to attend due to travel commitments.
[3] Mother’s affidavit filed 4 September 2014 at paragraph 13.
Subsequently the parents were advised by letter from the G Town Contact Centre, which the father received on 7 September 2014 that the father’s contact visits with the child were suspended. Thus, the father has not seen the child since his last visit on 28 June 2014.
Whilst I am satisfied that the mother has not complied with orders for time historically made, it is equally true that the father failed to comply with the orders made on 3 February 2014 for him to attend upon a psychologist twice a week in relation to his psychological issues including anger management issues. In his oral evidence at trial the father confirmed in cross-examination by counsel for the ICL that he had not attended psychological therapy as was required by the order. He offered no sensible explanation for that
non-compliance. He sought to advance the proposition that when he left the defence force in early 2013 he accessed relevant health services within the defence force who, as the father would have it, gave him some kind of clearance. However, the subject order plainly post-dates the father’s departure from the defence force and in any event it is an order of the Court. Orders oblige parties to comply and it is clear that there was abject failure by the father to comply. Apart from anything else, as he acknowledged in his oral evidence, it may well have gone a long way to assuage any legitimate concerns of the mother by the time of the trial if the father had complied with that order and was able to offer evidence from a treating psychologist that he had in fact addressed the issues.
It will be seen that the ICL’s proposed final orders include orders for both parents to complete a parenting orders program. I am satisfied that such an order should be made.
Parties’ proposed parenting orders
The father filed a Case Information document on 25 September 2014 seeking orders, inter alia, that:
·B live with the father:
oeach alternate weekend from Friday at the conclusion of school (or 3.30 pm if a non-school day) until the Sunday at 5.00 pm;
ofor half the Christmas holiday period.
·B live with the mother at all other times.
·Telephone contact:
oB be permitted to telephone the other parent upon request; and
othe parent with whom the child is not living be permitted to telephone the child at all reasonable times, not less than each Monday and Wednesday between 6.30 pm and 7.30 pm.
·The parent with whom the child is living with on each occasion be responsible for collecting him from school and if a non-school day, from the other parent’s residence at the commencement of each period.
·Each party advise the other in advance where possible of any specialist appointment for the child so that each party be at liberty to attend such appointment.
·This order authorises the child’s school, treating medical practitioners etc to provide all relevant information to both parents.
·Each party keep the other notified of any changes of address, telephone numbers within 24 hours of the date of the change.
The orders contained in the father’s Case Information document did not deal with the question of parental responsibility. Ultimately the father supported the orders sought by the ICL in this respect in particular as regards to any change of address for the child and as to the school he is to attend. The father also sought injunctions in respect of changes of schooling or residence. The orders proposed by the ICL for the parents to have equal shared parental responsibility for change of residence addresses that aspect.
The mother filed a Case Information document on 25 September 2014 seeking orders, inter alia, that:
·B live with the mother.
·The mother have sole parental responsibility for all major long-term issues.
·B spend time with and communicate with the father as agreed but failing agreement:
oeach alternate weekend for two hours at G Town Children’s Contact Service on such days and at such times as is available (parties to share costs equally);
oby telephone each Wednesday with the mother to encourage the child to call the father at 6.30 pm.
oshould alternative contact be ordered, that the child have the same corresponding Christmas holidays as ordered for his brother to prevent them being separated ie:
§second half of Christmas school holidays in 2014 and all even numbered years;
§first half of Christmas school holidays in 2015 and all odd numbered years.
·
The mother also seeks further parenting orders regarding:
non-denigration, provision of information, restraints on the father consuming alcohol while the child is in his care and the like.
The ICL ultimately sought the orders handed up in final submissions on 4 November 2014. In summary, those proposed orders provided for:
· B live with the mother.
· The parents have equal shared parental responsibility for decisions relating to the child’s residence and in relation to changing the child’s name.
· Otherwise the mother have sole parental responsibility for major long-term issues subject to an obligation to obtain the father’s views and consider them before making any final decision.
· B spend time with the father each alternate weekend from after school on Friday until 4.30 pm Sunday (after an initial two visits involving one overnight).
· B spend half of school holiday periods with the father.
· Provisions for special days; telephone and other electronic communication and other orders for communication.
· The parents to facilitate the child’s ongoing attendance upon his therapist Mr E.
· Each party to undertake a parenting orders program.
· An order pursuant to s 65L of the Act to have a family consultant assist the ICL to explain to the child the final orders made and the reasons for those orders.
The law to be applied – parenting orders
Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders. Part VII in the form in which it applies to cases instituted prior to the amendments which came into effect in 2012 applies to this case.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests.
Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. This section expressly provides that this power is subject to, inter alia, s 61DA of the Act. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply in circumstances of abuse or family violence of the kind referred to in subsection (2) and further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility (s 61DA(4) of the Act).
The effect of s 65DAA of the Act is that if the Court makes an order providing that a child’s parents are to have equal shared parental responsibility for the child then it must go on to consider whether it is in the bests interests of the child and reasonably practicable for the child to spend equal time with each of the parents, and if it is, to consider that order and, if not, the Court must consider an order for substantial and significant time with each of the parents.
Part of the mother’s case can be understood as the mother advancing the proposition that by reason of the father’s historical conduct in terms of his excessive disciplining of the children, including the child, that unsupervised time would pose an unacceptable risk to the child.
The relevant law to be applied in that respect follows from the decision of the High Court M v M (1988) 166 CLR 69. In the context of this case an assessment has to be made as to the magnitude of any risk to the child of spending unsupervised time with the father and an assessment as whether any such risk amounts to an unacceptable risk. That is, whether unsupervised time would pose an unacceptable risk to the child’s health and welfare.
Central issues/events
The mother has made various allegations that the father has physically and sexually abused her and the children.
Physical abuse/verbal abuse
Discipline
The mother alleges that during the relationship the father was physically and verbally abusive towards her and the children, calling them things such as “stupid” and “fucked in the head”. The mother also alleges that the father excessively disciplined the children by: belting them hard enough to cause bruising; dragging them by the arm; shoving them; and pushing them along by placing his hand at the base of their heads. Further, the mother contends that on one occasion the father flicked her daughter Ms M on the forehead whilst he berated her and on another occasion punched her eldest son Mr L in the face, which caused him to run away and not return home for 12 months. Further allegations of abuse are extensively outlined at paragraph 14 of the mother’s affidavit filed 3 February 2014.
The father maintains that he never abused the children. During interviews with the family report writer, Ms S, the father maintained that the mother asked him to take on the role of “intervener” and he thus introduced rules for her children. The father admits to flicking Ms M on the forehead with his thumb and middle finger on one occasion, however asserts that he did this after Ms M repeatedly ignored him when he had asked her to do something. The father also admits that if the children turned away from him when he was speaking to them he would grab them by their arm to ensure that they remained in the conversation. If the children still refused to listen, he contends that he would put two fingers at the base of their skull while standing behind them and propel them in the right direction rather than dragging them. The father maintains that he never hurt the children and the mother never complained about his actions during the relationship. The father also alleges that he witnessed the mother repeatedly “flog” Ms N with a rubber thong, supposedly she later admitted that she “lost it”.
Under cross-examination at trial counsel for the ICL put to the father that he “… often told the children and the mother they were fucked in the head, stupid, fucking idiots, diseased whores, wastes of space.” The father admitted to making such statements “once or twice”.[4]
[4] Transcript of Proceedings 3 November 2014 at page 45 lines 40 to 45.
He admitted that on the night of the incident of 6 August 2011 discussed below, that he called the mother’s daughter Ms M “a diseased whore”.
Having seen and heard the father give evidence I doubt that his verbal abuse of the mother and her children was confined to the one or two occasions the father admitted to.
In one part of his evidence the father advanced the proposition that he told the mother she was “fucked in the head” only in an attempt to have her recognise that she needed some assistance. I reject such a proposition. That is, I do not accept that it would be seen even by the father as a sensible means to be suggesting that assistance was required to be telling the mother that she was “fucked in the head”.
I am satisfied that the father was prone to verbally abuse members of the household and that he has minimised his conduct in that respect.
The father also acknowledged under cross-examination that he did, on one occasion, punch the mother’s son Mr L in the face when Mr L was about 15 or 16 years old. However, I accept the context the father explained in his evidence as to how that event unfolded. In summary, the father explained that at that stage Mr L was acting in a very oppositional way and the central confrontation was as between Mr L and the mother. The father intervened but when the mother persisted in berating Mr L it seemed that Mr L was about to strike the mother when the father intervened by punching Mr L. I do not accept that it was the father’s conduct that caused Mr L’s departure. I accept the father’s evidence that the central disagreement was between Mr L and the mother and she was proactive in his departure. It is the case, I accept, that the father has a good relationship with Mr L who remains, it seems, somewhat estranged from the mother.
Whilst the father’s concessions in oral evidence were perhaps not as fulsome as they ought to have been, he did make concessions so far as the verbal abuse referred to is concerned, and the episode with Mr L. That, in my judgment, made his evidence concerning other events advanced by the mother as regards physical assaults of the other children more credible. That is, I suspect that the father was prone to taking hold of one or other of the children when he wanted their attention and perhaps was excessive in the force he used, but by the same token, it seems to me that it is likely that the mother has exaggerated the extent of force used in describing the father as pushing children into walls and the like.
Taking into account Dr R’s assessment of the father’s personality type; and the fact that he was himself used to strictures of discipline within the defence force, I consider it more likely than not that the father was a stern disciplinarian prone to excessive discipline of the children, but by the same token I do not accept the mother’s evidence that this went as far as she would suggest in terms of its severity.
Family violence incident – 6 August 2011
I record in passing that both the father and the mother were granted Certificates pursuant to s 128 of the Act in giving their evidence with respect to this incident.
On 6 August 2011 an incident of family violence occurred between the parents. On that occasion the parents attended a work function for the father at his work place at T Town during which they both became intoxicated and later returned home when the incident arose. The father contends that during the altercation the mother threatened him with two knives and he subsequently pushed her and knocked her out. The father appears to be ashamed of the incident saying it was “an accidental overuse of force” but maintains that he only did so to protect himself.[5]
[5] Father’s affidavit filed 9 December 2011 at paragraph 26.
On the mother’s case, the father became heavily intoxicated at the function and he slammed her head against the side of a mini bus as they were getting onto it when they were leaving the air base. Then, upon arriving home, the father became increasingly aggressive toward her and her children, particularly Ms M, which led to the mother getting knives to protect herself. The father then allegedly picked the mother up and threw her on the ground knocking her unconscious in the presence of her children, Ms N, O and the child. The mother also deposes (in a subsequent affidavit filed 3 February 2014 at page 6) that the father “… cut her across the knuckles with a knife and sat on her chest and strangled her until she was foaming at the mouth and was unconscious, until daughter Ms M managed to drag him off her.” The children reportedly called the police while the mother was unconscious. The father spent the night in the watch house.[6] The mother sustained a black eye, a concussion and was hospitalised overnight.
[6] First family report dated 15 April 2012 at paragraph 26.
Exhibit 1 comprises the documents tendered by the ICL. Within Exhibit 1 (at page 36 of the Queensland Police Service records) is the following summary by the police in the charge sheet of the father of what occurred on that evening:
The victim in this matter is [Ms Tabbert].
The defendant in this matter is [Mr Tabbert].
The victim and the defendant were married for six years between 2005 to 2011.
On the night of the 5th of August 2011 the victim and the defendant attended a work function at [T Town]. At the end on [sic] the function the victim and the defendant returned home at [U Street, Suburb V] Queensland.
Once the victim has entered her residence she has begun to have a conversation with her two daughters and make a cup of tea in the kitchen. The victim then heard a screen door slam, at this time the defendant has entered the kitchen and started to verbally abuse the victim’s daughter. The victim has then grabbed her daughter and pulled her directly behind her in an attempt to protect her. The defendant pushed the victim on her upper body causing the victim to fall to the floor to the ground and hit her head.
The victim got up off the floor and saw the defendant standing in front of one of her daughters. The victim could see that the defendant had hold of her daughters [sic] arms, the victim has then put herself between her daughter and the defendant again and yelled at her daughter “Get out, just go I can’t protect you if you are here”. At this time the victim was trying to stop the defendant getting past her so that her daughters could get out of the house.
The victim has retrieved two knives from a knife bloke [sic]. Victim held one knife in each hand in a reversed manner with the blades resting along her forearms. The victim held the knives in this matter so she could hold her arms across her chest so the defendant would not shove her out of the way.
The defendant has then disarmed the victim by unknown means causing the victim to fall to the ground for a second time. At this time the victim has hit her head on an unknown object and has lost consciousness.
Between 12:00am and 1:00am on the 6th of August 2011 police from [K Town] District Tactical Crime Squad attended the dwelling. On entry to the house Police locate a female unconscious on the kitchen floor with a small amount of blood located on the tiles next to the female. Due to the victim being unconscious police were unable to obtain a version of events.
As a result of the victim’s injuries the victim was transported to [K Town] hospital via Queensland Ambulance Service. Victim sustained bruising and swelling over her left eye, bruising on her arms, elbow, tailbone, back, neck and knees.
Police located the defendant outside on the patio sitting in a chair and were able to obtain a version of events.
Police were also able to obtain a version of events from the victim’s daughters on the night who witnessed the events unfold.
As a result the defendant was detained for the purpose of a Domestic Violence application and was transported to the [K Town] Watch House where the application was completed.
On Thursday the 27th day of September 2012 the victim attended [G Town] Police Station and made a formal complaint of assault.
On the 20th day of June 2014 the defendant voluntarily attended [Suburb W] Police Station and participated in an Electronic Record of Interview in relation to this matter. The defendant made admission to pushing the victim to the ground on two occasions, however no further admissions were made.
The defendant was issued a Notice to Appear to appear in the Brisbane Magistrates Court on the 21st day of July 2014 in relation to this matter.
In the course of his cross-examination at trial, starting with the question of whether or not the child had witnessed this event, there were the following exchanges with the father:[7]
HIS HONOUR: ---so he wasn’t there. I just want to take this up. At paragraph 85 of her first report, [Ms S] records:
I asked the child about the reason for mum and dad not liking each other. He said that dad had pushed mum on the ground and he choked her, and he cut her thumb with a knife.
[7] All quoted Transcripts of Proceedings from Auscript contain errors as in original.
Now, firstly, there’s not an issue, is there, from your point of view, that you did, in fact, push the mother to the ground?
[MR TABBERT]: No, your Honour.
HIS HONOUR: Is there an issue about you choking her?
[MR TABBERT]: I don’t believe I choked her, your Honour.
HIS HONOUR: Well, do you remember? I think you said you were intoxicated at the time?
[MR TABBERT]: I have partial recollections of the event, your Honour, but I don’t believe that I tried to choke her.
HIS HONOUR: What about cutting her thumb with a knife?
[MR TABBERT]: Your Honour, she attacked me with two carving knives, 12 inches long, and I believe that when I disarmed the mother and pushed her to the ground, that’s when she cut her thumb.
HIS HONOUR: So the detail that the child provided, save for the choking, you don’t take issue with it:
...that dad pushed mum to the ground ... and he cut her thumb with a knife.
You say it was in the act of defending yourself, but you don’t disagree that her thumb or finger ended up being cut?
[MR TABBERT]: Your Honour.
HIS HONOUR: Is that right?
[MR TABBERT]: Correct.
…
HIS HONOUR: So do you accept that the mother was rendered unconscious in this episode?‑‑‑
[MR TABBERT]: Yes, your Honour.
HIS HONOUR: So just so I’m clear, accepting that you’re partially intoxicated, so your recollection mightn’t be great, just give me, as best you can, your accounting of the episode. You mentioned before about the mother coming at you with knives. I mean, just give me the sequence?‑‑‑
[MR TABBERT]: Your Honour, I had been away overseas with work. And while I was on that deployment overseas, [Ms Tabbert] had announced to me and advised me that our relationship was over. I immediately gained assistance from the defence force to return early from that deployment, to try and sort out the relationship of what was going on in our lives. It was a very, very stressful time. We were able – I was able to because of my overseas deployment time. We were able to get some counselling with the [defence force]. We started counselling. It appeared as though things were starting to make an improvement. And we had a work function on that – the night of the incident out at the [workplace]. And during that evening, I was systematically made to feel like an absolute worthless piece of rubbish in front of my work colleagues and my seniors by [Ms Tabbert] and her behaviour. I hid from it by finding an alcohol bottle and ended up in a blubbering mess in the corner of the [workplace]. My [manager], [and other senior management] basically said it was time to go home, which it was. The venue was closing down. We went home. I fell asleep/passed out on the bus.
HIS HONOUR: On the what?‑‑‑
[MR TABBERT]: On the bus on the way home. They were courteous enough to supply a courtesy bus for us. When I got home, I was basically – I woke up, walked into the house, and I wanted to make a cup of coffee. It’s something – I’ve always had a cup of coffee or something to eat before I go to bed. It’s part of my nature. When I’ve had a drink, I would have to have something to eat. And [Ms Tabbert] and I ended up in an argument and she was in my face, and I just don’t like people – I have a very, very strict policy on my personal space. I pushed her out of the road to get out of my face, and then her daughter started on me. I pushed [Ms Tabbert] again when she got in my face. And then she came at me with two carving knives. I was in the corner of a bench – we had an island bench in the house. And I was in the corner of the kitchen and I had nowhere to go. The only thing I could do and think – [Mr L] is [a tradesman]. He sharpens all the knives in the house so the knives were razor sharp. And the only thing that went through my head is I am going to get cut and this is really going to hurt, and I do not approve of it. I picked her up – well, not picked her up, but grabbed her by the throat and pushed her down towards the ground, and that’s when her head hit the ground and she became unconscious and she dropped the two knives. And then I got off, grabbed hold of the phone and called the police, and within about two or three minutes, it seemed, the police were there.
HIS HONOUR: So hitting her head on the ground is what rendered her unconscious?‑‑‑
[MR TABBERT]: Yes, your Honour.
HIS HONOUR: How did she cut herself, or how was she cut, I’m sorry?‑‑‑
[MR TABBERT]: I believe it must have been the way she was holding the knives, your Honour. And the fact that they were very, very sharp knives.
…
MS McARDLE: Did [Ms N] take any part in the specific events that occurred between you and the mother?‑‑‑
[MR TABBERT]: Not that I recall, no.
MS McARDLE: But [Ms M] did?‑‑‑
[MR TABBERT]: Yes.
MS McARDLE: And you – sorry, did you push [Ms M] at all?‑‑‑
[MR TABBERT]: I believe I may have pushed her out of my road at the time, yes.
(original emphasis)
Having seen and heard the father give evidence concerning this event, I do not accept his attempts to portray himself or his actions as those of a victim acting in self-defence. That is, I do not accept that his behaviours are, as the father would have it, in response to the mother threatening him with knives. In my judgment, it is more likely than not that it was the other way around. That is, that the father was obviously the aggressor and that it is more likely than not that the mother took up the knives in an effort to defend herself from the father’s attack.
In giving her evidence the mother explained how she held the knives in a defensive position and I accept her evidence.
The evidence surrounding this event is to the effect that the father was apparently suspicious of the mother having had or conducting an affair. He was apparently emotional at the work function. He clearly was heavily intoxicated. Whilst the mother too was likely intoxicated, it would seem that the police inquiries were informed by the evidence that the mother’s daughters could provide.
Apart from anything else the father’s level of intoxication, which he acknowledged in evidence, renders his version of events doubtful. In any event, I prefer the mother’s evidence as to this incident and I do not consider that the father did himself any credit in attempting to portray himself, in giving his oral evidence at trial, as a victim attempting to defend himself. He was, in my judgment, the aggressor and plainly he grabbed the mother by the throat and used sufficient force to throw her to the ground and, on his account, it was that event which rendered her unconscious as an indication of the force used.
B was only seven years of age when this event took place on 6 August 2011. On the whole of the evidence, I accept that it is more likely than not that the child did not actually witness the assault by his father upon his mother, but, given the evidence that he was in one of the bedrooms of the home at the time, plainly the child would have been aware of the aftermath and would have seen the state of the mother and would likely have seen the mother’s state as he left the house with the other children.
It is clear on other evidence that the significance of this event has stayed with the child. Apart from his statements about it to the family report writer Ms S, there is within the tendered documents in Exhibit 1 references within the child’s medical records. For example, there is at page 196 of Exhibit 1, being an extract from the medical records of the X Health Service at D Town records, an entry dated 10 September 2012 in relation to the child’s consultation with Dr Y. The relevant part of that entry reads as follows:
[B] reported that he loves his mum very much and when asked what the best thing about his mum was he replied “everything”. He stated that his brother and sister don’t like him and when asked how he knew this he shrugged his shoulders. When asked about his father [the child’s] posture became stiff and he seemed to freeze. His muscles (arms) became visibly tense and his breathing rate increased dramatically and he started breathing rapidly. I taught [the child] some deep breathing and he liked the deep breathing. He was quickly able to learn this technique. Without prompting, [the child] reported that his father tried to kill his mother and when asked if he witnessed this he nodded his head and said “yes” – this was accompanied by physiological changes as previously observed. We ended the session with some deep breathing.
It seems to me to be clear from that entry that it is not the case that the child simply parrots a version to the effect that the father attempted to kill the mother in describing this episode. It is clear that Dr Y was able to observe physiological changes in the child as he described this incident. It matters not, in my judgment, whether the child actually witnessed the event, as it is clear enough that it has become part of his belief system that the father did indeed attempt to, from his perspective, kill his mother in the episode described.
I have no doubt that the child has not been assisted by his alignment with the mother and her own views about the father and this event. That is, it is more likely than not that such alignment with the mother and consequent adoption by the child of his mother’s own views, has reinforced the child’s belief system about the relevant event.
The point here is that whilst it is all very well for the father to go some way (but probably not far enough) in acknowledging his disgraceful conduct, it is that conduct which, in part, has led to the problems of the child being resistant to spending time with the father, from time to time. That is, in my judgment, this is not a case where it can be put down entirely to the mother’s negative views of the father that the child has responded in the negative ways he has from time to time.
Plainly, relevant to the statutory considerations, this was a serious event of family violence perpetrated by the father.
The seriousness of this event serves to highlight the seriousness of the father’s failure to comply with the orders made on 3 February 2014 for him to undertake the ordered psychological therapy to address his anger issues.
Following an application by police on 15 August 2011 the mother obtained a two year protection order against the father (by consent without admission). This order expired on 14 August 2013 and is annexed to the mother’s affidavit filed 1 February 2012. The mother asserts that since this order was made the father has stalked her and made various attempts to contact her. I am not satisfied that this is in fact the case. The mother has moved house and changed her phone number several times, she says, for fear of the father harming her or her children.
On 31 August 2012 the mother filed an application in the Magistrates Court at G Town to extend the duration of the protection order and vary its conditions. The father contested this application. In particular the mother sought to name the child as an aggrieved as well as three of her other children, and to prevent the father from attending the child’s school or any other place associated with her children and contacting her or any of her children listed on the order (including the child). A copy of that application is annexed to the father’s affidavit filed 18 October 2012 (Annexure “JT5”). On 31 January 2014 the mother obtained a temporary protection order against the father in the Suburb Z Magistrates Court which named the mother, the child, Ms N and O as aggrieved persons. A copy of that order is Annexure “DAT-5” to the mother’s affidavit filed 3 February 2014. That application was adjourned for further hearing on 27 February 2014.
It appears the temporary protection order was made permanent as it is recorded in the chronology contained in the mother’s Case Information document (filed 25 September 2014 at page 12) that on 27 February 2014 a Domestic Violence Order (“DVO”) was made against the father. No further information on this issue is contained in either party’s updating affidavit. However, I note that the father reported to Ms S during interviews for the updated family report on 1 May 2014 that his DVO was due to expire early this year, however the mother took out a new one in February 2014 in the Suburb Z Court. The father recounted to Ms S that the mother claimed the father had followed the mother into the city on an occasion the previous year and broke into her car to steal medication and documents, which the father denies. The father reported that he nevertheless accepted the DVO as he is happy for the mother to have it if it makes her feel safe. The father maintained that “I just want to move on with my life.”[8]
[8] Third family report dated 6 May 2014 at paragraphs 26 and 27.
As earlier noted, the father was charged by the police with assault occasioning bodily harm to the mother as a result of the August 2011 incident. In her most recent affidavit (filed 4 September 2014) the mother deposes that in late May 2014 she received a telephone call from the Suburb W Police Station informing her that the father had been charged with assault occasioning bodily harm from the incident on 6 August 2011. Further, she deposes to attending upon a lawyer (from Schultz Toomey O’Brien) who has filed a personal injury claim on 31 July 2014.[9] The father deposes that he attended the Brisbane Magistrates Court on 21 July 2014 after he was issued a Notice to Appear by the Queensland Police Service. The father confirms that on 30 July 2014 he received paperwork from Schultz Toomey O’Brien advising that they acted on behalf of the mother in a civil compensation matter being brought against him. The civil and criminal proceedings were both ongoing as at the time of trial.[10]
[9] Mother’s affidavit filed 4 September 2014 at paragraph 36.
[10] Father’s affidavit filed 18 September 2014 at paragraphs 16 and 17.
Alleged rape – September/October 2011
The mother has made allegations, which the father denies, that the father raped her following separation in either September or October 2011. It appears that the mother never reported this alleged incident to police. During interviews with Ms S, the father stated that after the event the mother’s son Mr L, told him that the mother instigated sexual relations in an attempt to record the event so that she could take it to the police but her recording device failed. The mother told Ms S during interviews that she did not report the event supposedly because she was advised that she needed further proof and her recording device which she had with her failed.
Further in her affidavit filed 3 February 2014, the mother outlines the following series of events, which she says occurred in September 2011. On this occasion the mother allegedly attended the father’s house with the child to get sewing implements. Upon their arrival the father supposedly ushered the child inside the house and directed the mother to the garage to find the sewing implements. Once in the garage the father purportedly began putting his hands up her shorts and touching her genitals. When the mother asked him to stop he threatened her to be quiet or he would hurt her. The mother deposes that the father then allegedly took her to another room where, “… he forced her into the wardrobe and forced sexual intercourse on her, even though she was still shaking with fear and crying and telling him to stop. He then took her to his bedroom where he made her disrobe if she wanted to keep her children safe, and forced sexual intercourse on her.” After the father was finished “… the mother showered and ran out of [sic] house, leaving the child [B] behind in her distressed state.” The father said to the mother words to the effect “… [i]f you tell anyone about this or report it I will slit your throat”.[11] (original emphasis)
[11] Mother’s affidavit filed 3 February 2014 at page 6 paragraph 14.
There is no evidence that the mother pursued any complaints about these alleged events with the police. She explained in her oral evidence why there was a delay in there being any complaint to the police about the event which occurred on 6 August 2011. That is, the mother assumed that because the police were involved at the time they would pursue any charges against the father without any further instigation by her. However, given that the mother obviously did later make a complaint about the event of 6 August 2011, there is no corroboration, in the form of police complaint, in relation to these other events. Given the seriousness of the allegations and that I am not satisfied that the mother is a completely reliable or accurate witness; I cannot make positive findings against the father with respect to these allegations.
Other incidents of alleged abuse
In her affidavit filed 3 February 2014 at paragraph 14, the mother alleges several occasions where the father assaulted her or the children. In particular, I record that the mother alleges that in May 2011 she was tied up, gagged and sexually assaulted by the father and a work colleague named Mr AA from the workplace at T Town, when the child and O were in the house.[12]
[12] Mother’s affidavit filed 3 February 2014 at page 5 paragraph 14.
On the father’s version it was the mother who instigated the idea of having a third person involved in a sexual encounter. On the father’s version the mother, at the time of the May 2011 event, was both intoxicated and had taken prescription medicine. It would seem doubtful on that account that the mother’s consent, as the father would have it, was a true consent. However, again there is no corroboration provided via any complaint to the police by the mother at the time about this event and given the seriousness of it, for similar reasons as earlier discussed, I am not able to determine with confidence where the truth lies concerning this event. It may also be added that the parents remained in the relationship until August 2011.
Allegation of rape by father of mother’s daughter
As earlier noted, the father’s time with the child was reduced to supervised time following allegations made by the mother in August 2012 that the father had sexually abused Ms N. The father denies these allegations and maintains the police have never contacted him about them.[13]
[13] Second family report dated 13 May 2013 at paragraph 24.
During interviews for the second family report (dated 13 May 2013) Ms S recorded at paragraph 29, “I found it necessary to prompt her [the Mother] about [Ms N]. Yes, she remembered now. In this regard, she said that the police hadn’t told her anything about [Ms N’s] disclosures except that she had made some.”[14] The mother reports that she first became aware of Ms N’s disclosures sometime around July or August 2012 when the police attended at the mother’s home after Ms N ran away. Sometime thereafter the child protection unit supposedly attended the mother’s home to ask Ms N to make a statement about the incident. According to the mother, Ms N supposedly kept putting this off. The mother claimed during interviews with Ms S that she did not know the content of the disclosures as Ms N did not tell her, all she knows is that the father raped her. The mother subsequently deposed, in her affidavit filed 3 February 2014, that Ms N refused to make a statement to the police as she fears the father “… will kill her if she does and since he has not been charged for the assault does not believe the police or authorities really care or can protect her”.[15]
[14] Second family report dated 13 May 2013 at paragraph 29.
[15] Mother’s affidavit filed 3 February 2014 at page 8.
I have purposively not included the debt the father claims is owing to his own father in respect of an advance the father alleges was made to the mother’s business during the relationship. That is so for reasons explained elsewhere in these Reasons.
I have also not included in the above schedule the amounts of loans the mother claims with respect to her further education. That is, whilst it may be accepted that the mother did obtain such loans, the reality is that these were loans obtained post-separation and, more particularly, the terms of the loans are not the topic of any detailed evidence by the mother. That is, it is not known whether the loans are only payable or repayments become payable when the mother commences to earn a prescribed level of income subsequent to obtaining her tertiary qualification referable to the loans. In any event, I do not consider that it would be just and equitable to include these post-separation liabilities without an adjustment for them in the father’s favour so the same result is ultimately achieved by excluding them.
I have otherwise excluded items appearing in the balance sheet or affidavits of the mother but of which I am not satisfied, on the evidence, continue to be in existence. With respect to a number of items there are allegations in affidavit evidence that one or other party holds those items but denials by that party, and this was not sufficiently explored in evidence at the trial for conclusions to be reached that such items continue to be held or exist.
As is readily apparent from the above schedule, the parties’ individual, and combined, net non-superannuation asset position is in negative/deficit territory.
Conversely, the father’s superannuation interests represent the only “asset” of significant value, but of course it must be recognised that the nature, form and characteristics of superannuation interests fundamentally differ from those of other assets or property in common form.
As can be seen from the father’s affidavit filed 3 February 2014, taken with Mr DD’s affidavit filed 3 February 2014 and the annexures to that affidavit, the father’s interest in the HSS is a defined benefit interest in the payment phase, with an annual pension rate (as at 19 September 2013) of $24,370.77. As is referred to in the “exit statement” the unrestricted non-preserved amount was $457,512.00 (as at 9 September 2013). The pension is indexed to movements in the Consumer Price Index twice yearly.
As is discussed in a number of authorities,[20] a pension payment is valued in accordance with the Regulations but there is an obvious difference between property or lump sum cash having a value of $519,488.22 and a pension being valued at that amount under the Regulations but which is received in weekly or fortnightly payments. This topic will be discussed further later in these Reasons.
[20] See, for example, Edwards & Edwards (2009) FLC 93-409; Coghlan and Coghlan (2005) FLC 93-220; Cahill and Cahill (2006) FLC 93-253; Trott and Trott (2006) FLC 93-263; Treloar & Treloar (No 2) [2007] FamCA 1127; Glover & Glover (No 2) [2009] FamCA 411.
Initial contributions
Taken from the mother’s affidavit filed 15 May 2012, she says that at the commencement of the parties’ cohabitation in 2003 (or soon thereafter) the mother sold her residential property in J Town for $176,000.00 with proceeds of $168,174.40 being received “after fees”.
The mother deposes to $28,500.00 of this sum as being used to purchase a 4WD motor vehicle. She deposes that $119,674.40 was deposited to a bank account. However, there is no explanation in her affidavit material as to the use made of the $20,000.00 difference between what she says she received in proceeds and the amount applied to purchase the vehicle together with the amount banked. In oral evidence at trial the mother made some reference to having a sum in the order of $50,000.00 in cash but it is far from clear whether this did or did not form part of the bank deposit.
As to the use of the $119,674.40 amount that the mother says that was banked, all that is provided by the mother in her affidavit as to the use of that sum, is the following:
7.An amount of $119,674.40 was paid into my bank account. This money was used towards solicitor fees, mortgage, motorbikes, trailer and clothing for the children and myself and other general living expenses, furniture and airfares for contact visits for my children and [Mr Tabbert’s] children.
(emphasis added)
No break-up is provided of the items identified. The reference to “mortgage” would indicate that there was a mortgage debt or amount payable out of the proceeds of sale of the property. The reference to “solicitor fees” would seem to be a reference not to conveyancing fees only because the father refers in his evidence to there being legal expenses in relation to other proceedings involving the mother’s other child or children and property proceedings, and the mother did not dispute that evidence.
The mother also deposes (at paragraph 6) to having purchased a motor vehicle on 7 March 2013 for $22,000.00 and asserts that she “… had approximately $25,000.00 worth of furniture and contents. I [the mother] also had approximately $2,000.00 in superannuation.”[21]
[21] Mother’s affidavit filed 15 May 2012 at paragraph 8.
In his affidavit filed on 16 August 2012 the father deposes as to the mother’s initial contribution of capital as follows:[22]
… the Applicant sold her house and after payment of her mortgage debt of around $100,000 I believe she had $80,000 or $90,000 out of which she paid legal fees to her lawyer with respect to parenting and property proceedings of $30,000 to $35,000 and purchased a [4WD motor vehicle] for $28,500. She had about $30,000 left when we moved to Brisbane as a result of my having been transferred in early 2004. She also had a 2001 [motor vehicle] which she told me had been given to her by her previous employer although her employment concluded before we commenced any relationship. She also had a house full of furniture.
[22] At paragraph 11.
At paragraph 16 of that same affidavit the father refers to the mother selling both of the motor vehicles referred to in 2006 “… netting $15,000 to $16,000 on the [4WD] and $8,000 for the [motor vehicle] and all of those funds were utilised by her to purchase business stock.”
As to the father’s initial capital contribution the mother deposes to the following items at the following estimates of value:[23]
a)Motor Vehicle – approximately $2,500.00
b)Motor Bike 4 – approximately $3,500.00
c)Motor bike 5 – approximately $1,000.00
d)Superannuation – value unknown.
[23] Mother’s affidavit filed 15 May 2012 at paragraph 9.
In the father’s affidavit filed 16 August 2012 he deposes to having, at the commencement of cohabitation, “… a house full of furniture, a car, a road bike and a dirt bike, a trailer and superannuation of about 13-14 years.
I [the father] was in [defence force] supported accommodation and my only commitment was child support.”
For the trial the father relied upon the expert evidence of Mr DD who provided valuations of the father’s superannuation interests at various dates. Mr DD’s evidence is unchallenged and he was not required for cross-examination. Taken from Mr DD’s affidavit, the father joined the HSS on 10 September 1992 and as at November 2003 (cohabitation commenced in 2003) the value of the father’s interest in that scheme (valued in accordance with the Family Law (Superannuation) Regulations 2001 (Cth)) is assessed by Mr DD at $107,206.87.
It would seem that on one interpretation of the mother’s evidence, an interpretation most generous to her, the mother may have initially contributed a greater total amount of capital to the relationship than did the father, but the difficulty is that the mother’s evidence is so imprecise that a firm conclusion to this effect, or a dollar value assessment, is not possible. This is primarily because there is no explanation by the mother as to the break-up of the $119,674.40 between the items she identifies, that is, those items for her own benefit on the one hand, and those which can be characterised as for the joint benefit of the parties. Of particular significance in this respect is the mother’s reference to part of the sum being applied to “mortgage” without identifying the amount. The only mortgage in existence at that time was any mortgage on the property owned by the mother which she sold.
There is also the further question about the $20,000.00 difference as earlier referred to and the lack of evidence provided by the mother about it.
On the father’s evidence referred to, the total net amount of capital contributed by the mother at the outset of the relationship was less than the value of his superannuation interest referred to (leaving aside any other items), although the father advances only estimates in some cases and no estimates at all for the mother’s vehicles at the time cohabitation commenced.
In my judgment, doing the best I can on the evidence referred to, and having regard to the feature that estimates by the parties, rather than valuation evidence or documentary corroborative evidence is provided in respect of many items, it would seem more likely than not that each party contributed net capital of, broadly, an equivalent value at the outset of the relationship.
Put another way, I do not consider that the father can ultimately be credited solely, in terms of contribution, with the value of the superannuation he held at the outset of cohabitation without taking into account that the mother also had capital of some significance. That is, the father’s case proceeds on the footing that he ought be credited solely with the value of his superannuation at the commencement of cohabitation without regard to the mother’s initial capital, but doing so would ignore that the mother also contributed capital at the outset which was utilised during the relationship, at least partly for the parties’ joint benefit.
Contributions during the relationship
In terms of contributions during the relationship, between 2003 and final separation in August 2011, each party appeared to acknowledge in evidence and/or final submissions at trial that their respective contributions equated with each other.
The father continued in his defence service throughout the relationship deriving the income from that service which he applied to the relationship.
Obviously, the child was born at an early stage of the relationship, in 2004, and there is no real issue that it was the mother who has always had primary responsibility for his care and that of the other children in the household and the household itself in terms of homemaking contributions. In addition, in about 2004 the mother commenced her business earlier referred to. On the mother’s essentially unchallenged evidence, the business enabled the mother to make some financial contribution to joint expenses of the parties and the household, albeit that capital was also applied to the business from time to time.
I interpolate here that whilst the father contended that his father made a loan of $10,000.00 to the business and that such loan remained owing, the mother denied that to be so and there is no direct evidence provided from the father’s father as to this issue. Absent such evidence, it cannot legitimately be concluded that there is such a loan due and owing to the father’s father to be taken into account.[24]
[24] Biltoft and Biltoft (1995) FLC 92-614.
Initially, the parties’ household included the mother’s other children (other than her oldest son initially) and throughout the relationship (other than the periods the two children earlier referred to left the household) the mother’s other children were part of the household. In the initial period, the household also included the father’s two daughters from his earlier relationship on a fortnightly basis but this was only until the family relocated from J Town to K Town for the father’s work in 2004.
The father points to the feature that child support was only ever received in respect of the child O, and thus his income supported the mother’s other children as well. I accept that this needs to be recognised. Balancing that somewhat, the father had child support responsibilities throughout the relationship for his two daughters from an earlier relationship and I have already referred to the feature that the mother’s business contributed to joint expenses.
It should be noted here that with respect to the mother’s business she described it in oral evidence as a “hobby” although it was clear from cross-examination of the mother by the father at trial that fairly substantial volumes of product were sourced from China. In the end there is no sufficient evidence provided to determine how financially successful the business was or the extent of contribution coming from that source so that only general conclusions can be made.
Given the acknowledgement by both parties during the trial and/or in final submissions and having regard to the essential facts referred to, I find that the contributions of each party during the relationship should be treated as being equal.
Post-separation contributions
The mother contended that as at separation she was left with credit card debts in the order of $50,000.00. She refers to the feature that moneys were borrowed on her credit cards during the relationship for joint expenses and that these debts ought be brought into account and both parties should be liable for the debts as at separation.
However, the father too has met jointly accumulated debts since separation. In particular, he has been responsible for the debt on the Toyota motor vehicle used by the mother post-separation and he has met those payments over the time since separation.
It is less than clear, given the state of the parties’ evidence, as to the amount of child support paid by the father in respect of the child from time to time over the post-separation period. The mother asserted that the father was “behind” in child support payments, but the evidence does not provide the ability to make clear conclusions about the level of child support being paid from time to time or whether the mother’s assertion in this respect is accurate.
What is clear is that the mother, over the now lengthy post-separation period, has undertaken the majority of care and support for the child. That is, her contributions in that respect have extended beyond the separation date of August 2011 which assumes some significance given the length of that period. There is no evidence that the father has paid any significant, or any, spousal maintenance as such in circumstances where he has seemingly continued to earn a fairly significant income (at trial $82,000.00 per annum) as compared to the mother’s position of being reliant upon social security payments.
The father agitated in his cross-examination of the mother at trial that the mother had received the exclusive benefit of the then remaining stock from her business as it existed at the time of separation. The mother acknowledged that sales of that stock were sufficient to equip her household with whitegoods and other household requirements but there is insufficient evidence to support a conclusion, as seemed to be contended for by the father, that the mother has derived a significant financial benefit exclusively for herself out of the remaining stock of the business.
Clearly the most significant feature of the post-separation period is the substantial increase in the value of the father’s superannuation interests.
As already noted, Mr DD valued the father’s superannuation interests as at the time of the parties’ separation (date of value 20 August 2011) at $296,617.66.
In his affidavit filed 3 February 2014, the father deposes to discontinuing his employment in the defence force in mid-2013 and commencing employment as a technician with FF Pty Ltd commencing on an annual salary of $64,000.00. The father confirmed at trial that his current salary was $82,000.00 per annum.
Following the discontinuance of his employment with the defence force the father deposes to converting the bulk of his HSS superannuation entitlement into a retirement pension of $24,370.00 per annum resulting in a net fortnightly pension payment of $706.28. He deposes to rolling over the lump sum of $66,087.12 from his HSS superannuation into the Mr I Tabbert Super Fund, a self-managed superannuation fund administered by his father for his benefit; and that he received a net lump sum payment of $19,948.09. In other words the father received lump sums totalling $86,035.21 with the sum of $19,948.09 of this total being taxable.
The father was able to extinguish his credit card debt and his defence force loan from these funds but otherwise had the exclusive benefit of these cash receipts. He did, as already noted, maintain the repayments with respect to the Macquarie Leasing loan on the Japanese motor vehicle used by the mother since separation.
The father deposes that he also received an additional payment of $7,377.50 for “ancillary benefits”. Essentially, on the evidence, the father’s interest in the self-managed fund comprises cash deposits or equivalents in the amount of $97,000.00 deposed to by the father in his affidavit filed 3 February 2014.
Thus, as compared with superannuation interests at separation worth $296,617.66, the figures or valuations at trial were $519,488.22 for the HSS interest and $97,000.00 for the self-managed fund, a total of $616,488.22 or an increased value of $319,870.56 overall on the value of $296,617.66 at separation.
Plainly the father ought receive credit for the contribution by his continued earnings and preservation of funds in increasing the value of the superannuation over the period since separation.
The father also deposes to the feature that about $30,000.00 of the sum in the Mr I Tabbert Super Fund is the residual of a “bonus” he received for renewing his service with the defence force in 2007 after 15 years of service, and at that stage the parties had been together for only four years.
Assessment of contribution-based entitlements
For reasons already discussed, I am unable to make precise findings as to the value of the respective initial capital contribution of each party. Doing the best I can on the evidence, it would seem that the father’s contribution of his accumulated superannuation with a value of $107,206.87, together with his other items, was probably more or less matched by the initial capital contributed by the mother.
As also already noted, the parties essentially agree that over the period of the relationship until separation in August 2011, their contributions should be treated as equal. That is, whilst the father continued in his defence force employment, the mother undertook primary homemaking and caring responsibilities for the child and she also engaged in her business from 2004 onwards for the balance of the relationship.
I interpolate here that whilst there is no asset to point to referable to the mother’s initial contribution or the business, I am satisfied on the evidence that some contribution came from the business to the support of the parties and the household during the relationship, and in any event, it is not the test of financial contribution to look solely at the financial product of that contribution. That is, even though the business does not represent an existing asset currently, that does not mean that the contribution made by the mother in working in the business is not to be given weight.
Commencing at paragraph 33 of his affidavit filed 3 February 2014 the father sets out the years of his membership with the fund and refers to the period of cohabitation as a proportional percentage of that overall total. He then applies that percentage to the pension value of $519,488.00 and contends there that the proportionate part of that value of $195,431.00 is the amount that ought be brought to account as the proportion of his pension valuation attributable to the marriage.
By the same process the father contends that the proportionate amount of $24,861.92 of the Mr I Tabbert Super Fund represents the proportionate amount attributable to the marriage.
The approach taken by the father with respect to assessing a proportion of his superannuation as referable to the relationship overlooks some important matters.
First, to adopt that approach would be to ignore or give no proper consideration to the feature that the mother contributed her initial capital. That is, the capital contributed by the mother probably equated more or less to the value of the father’s then superannuation accumulated over the period from when he joined the fund in 1992 until the relationship commenced in 2003. To ignore those years in the calculation performed by the father would produce a distortion whereby the mother’s initial equivalent capital would be disregarded, in circumstances where the non-superannuation assets of the parties or either of them is now a net deficit value.
Second, whilst it is clear that the father must be given significant credit and weighting for the increase in the value of his superannuation over the period since separation in 2011, again, to perform the exercise performed by the father would be to ignore the feature that the mother has made continuing contribution in the form of her primary care role with the child.
I take into account that the mother has had the use of the Toyota vehicle and that the father has maintained the repayments of the loan on that vehicle. I also take into account that the debts accumulated by the father as at the time of separation (for the parties’ joint benefit) have since been repaid via the payments the father received following the termination of his employment with the defence force.
In my judgment, taking into account and balancing the relevant considerations; and in particular having regard to the substantial increase in value of the father’s superannuation interests post-separation and that these represent the only asset of significance; I consider that the appropriate assessment of the parties’ contribution-based entitlements is 75 per cent/25 per cent in favour of the father.
Section 75(2) factors
The father is 42 years of age and the mother is aged 44 years. There is nothing to suggest that either of them is otherwise than in good health.
Plainly the property of each of the parties is extremely modest and essentially the father’s superannuation interests are far and away the most significant. Indeed, as has been seen, the non-superannuation assets of the parties or either of them are a negative.
The father has a demonstrated capacity for gainful employment and as at trial was earning $82,000.00 per annum. Obviously the pension amount he currently receives will be affected by any splitting order with respect to his superannuation interest in HSS.
I reiterate that each party was self-represented in the proceedings. Mr DD was not called to give evidence. Whilst each party sought a splitting order with respect to the father’s HSS superannuation, both parties sought a splitting order by way of the allocation of a base amount rather than a percentage split of payments.
Relevant to the consideration of s 75(2) factors is the potential effect of any splitting order. Obviously it will mean a reduction in the amount of pension payment the father receives but of course he has his income of $82,000.00 per annum from employment in addition to the pension income he receives.
The mother is currently on Centrelink benefits and obviously payment to her of a part-pension may impact upon her eligibility for Centrelink payments and may have an effect on the child support assessment she would otherwise obtain for the child.
I have given consideration to whether a splitting order with respect to the interest in HSS should take the form of a percentage split of payments rather than the allocation of a base amount as each party sought.
However, it would seem that in this case the position is governed by s 49B of the Defence Force Retirement and Death Benefits Act 1973 (Cth) which provides as follows:
49B Associate pension for non-member spouse if operative time in payment phase
(1) This section applies to a superannuation interest (the original interest) if:
(a) CSC receives a splitting agreement or splitting order in respect of the original interest; and
(b) the original interest is not an entitlement to pension under section 42 or 43; and
(c) the member spouse and the non-member spouse are both alive at the operative time; and
(d) if a base amount applies—the base amount at the operative time is not more than the family law value or the scheme value.
(2) If, at the operative time, standard pension is payable in respect of the original interest, then the non-member spouse is entitled to associate pension from the operative time, at the rate calculated under the Orders by reference to the transfer amount.
Note: If standard pension is not payable at the operative time in respect of the original interest, then the nonmember spouse will be entitled to benefits under the Defence force Superannuation and Benefits Act 1991.
The original interest here is not an entitlement to pension under ss 42 or 43 of that Act, so it would appear that s 49B applies to the father’s interest.
It would also seem that subsection (2) of that section would apply here in that the father’s interest is in the payment phase and he is receiving pension payments.
Whilst the parties understandably did not direct specific argument to this aspect, it would seem that it is more likely than not that a splitting order as sought by each party will result in the mother receiving part of the present pension paid to the father with a consequent reduction in the amount the father receives.
Beyond broad estimates by reference to proportion or percentages, I am unable to determine precisely how much the father will continue to receive by way of pension; or how much the mother will receive by way of pension, on a particular outcome, as the evidence does not allow me to be more precise than that.
All I am able to conclude is that the mother will likely receive some pension payment in proportion to the amount of any splitting order by reference to the overall value of the father’s interest but whether that actually advances her position overall, having regard to Centrelink benefits, may be in doubt given the modest nature of the likely pension.
All that can be said with confidence is that the father remains in a significantly superior financial position than the mother given his capacity to currently earn from employment income of $82,000.00 per annum over and above any pension payment he will receive following a splitting order taking effect. That is, even if the mother were to receive all of the current pension payment, the father is in a significantly superior position having regard to the level of his employment income.
Given the mother’s age and circumstances there are advantages to her in receiving a part payment of pension rather than preserved superannuation she could not access until her retirement/qualifying age. For the same reason there would appear some advantage for the mother in receiving the major proportion of the adjustment via the HSS interest rather than from the self-managed fund.
Whilst the mother has enrolled in and undertaken some subjects to complete a law degree, at her rate of progress it will be some years before she completes her degree and thus some years before she can rely upon that qualification for her earnings. Indeed on the evidence, it cannot be said that the mother will certainly complete the degree given the early stage at which her studies are at.
Thus currently and for the foreseeable future the father is in a significantly superior financial position to that of the mother irrespective of the outcome with respect to the HSS pension payment.
The mother will have, for some years to come, the continuing primary care responsibility for the child who is 11 years of age.
The mother also has the ongoing care of O.
The mother is currently dependent upon social security benefits and that would seem to be likely to be her position for some years to come.
In my judgment the preponderance of relevant s 75(2) factors favours an adjustment in favour of the mother and, relative to the size of the pool, and the nature of what is being adjusted, I consider an adjustment of 5 per cent in the mother’s favour (giving rise to a disparity of 10 per cent) is warranted to bring the mother’s overall entitlement to 30 per cent.
In terms of the nature of what is being adjusted, I refer to the feature that the primary asset is the father’s superannuation. That is, the mother will be receiving the benefit of splitting orders of superannuation, probably in the form of pension with respect to the HSS interest, but not property in lump sum form which she can wholly utilise currently. She will remain responsible for the debts in her name.
Conclusions on property adjustment and property orders
As earlier noted, as at the time of trial the police had charged the father with assault arising out of the 6 August 2011 event and the mother had instituted a claim for damages/compensation against the father with respect to the same event. No evidence at trial was directed to the likely or prospective financial impact on either party of these matters, nor has either party sought to re-open the evidence since the trial to adduce any further evidence in that respect.
In these circumstances all that can be factored in is the prospect of the mother obtaining some award of damages from the father. Without minimising the event, the mother was not in paid employment at the trial; and her hospitalisation was brief; and the evidence does not suggest any permanent injury was sustained. That is, on the evidence before me it is not suggested that the mother’s claim includes components for substantial economic loss nor for permanent physical incapacity. Beyond these general observations, it is not possible to assess with any precision the likely amount of any damages award if the mother’s claim succeeds, nor is it known, on the evidence, when or how long into the future the claim is likely to be finalised.
There is no issue in this case that it would be just and equitable, within the meaning of s 79(2) of the Act, to make orders under s 79 altering the parties’ interests in property. Final separation of the parties brought an end to their common use of property as well as an end to the assumptions implicit or underlying their marriage. Each party, as outlined above, seeks orders for alteration of property interests and implicit in that is the acknowledgement by each party that the Court ought be satisfied that it would be just and equitable to make orders for property adjustment.
It was not in issue that the mother ought retain the Toyota motor vehicle and her household contents and otherwise receive and retain the trailer and the industrial sewing machine. The father ought retain sole responsibility for the debt in relation to that vehicle as this has been accounted for in the above calculations, and likewise that is so with respect to the debts in the mother’s name.
Each party sought a splitting order in relation to the father’s HSS interest in superannuation to achieve property settlement by the allocation to the mother of a base amount. The mother also sought a splitting order with respect to the father’s self-managed superannuation fund.
It would be illusory, in this case, to adopt a “two pools” approach to property settlement with non-superannuation assets forming one pool and superannuation assets forming the other given that there is a net deficit of
non-superannuation assets. The reality is that the superannuation interests of the father are the only assets of value in net terms.
If the mother receives or retains the items referred to, together with retaining responsibility for the liabilities in her name included in the above schedule, her position is as follows:
ASSETS: Amount Japanese Motor Vehicle $10,000.00 Trailer registration number … $ 2,000.00 Household contents $ 2,500.00 Industrial sewing machine $ 1,200.00 Total $15,700.00 LIABILITIES: G.E. Finance $11,444.55 CBA/Baycorp $36,505.45 Total ($47,950.00) Net deficit ($32,250.00) Add superannuation $ 2,066.00 Total (deficit) ($30,184.00)
Thirty per cent of the total combined pool amounts to $172,060.80 and taking into account the above net deficit of $30,184.00 it means that the mother must receive splitting orders in the amount of, rounded down, $200,000.00 to achieve the net result that she receives or retains an overall 30 per cent of the combined “pool” including the father’s superannuation interests.
In my judgment fairness and equity to both parties dictates that there ought be splitting orders with respect to both of the superannuation interests of the father, rather than the entirety of the adjustment amount of $200,000.00 being split from the HSS interest.
The father’s interest in the Mr I Tabbert Super Fund is comprised of cash deposits and the split of that interest will enable a fund to be created for the mother.
I therefore consider it to be fair, just and equitable that $50,000.00 of the adjustment be achieved via a splitting order of the father’s interest in the Mr I Tabbert Super Fund and the balance of $150,000.00 be via a splitting order of the HSS interest.
It is not readily apparent to me on the evidence of the father that the Trustee of the HSS fund has had notice from the father of the proposed splitting order in the terms that the father seeks. It is obviously necessary that the Trustees of each fund be accorded procedural fairness.
In these circumstances, it will be necessary to provide for the splitting orders to be made conditional upon an opportunity being afforded to the Trustees of each fund to be heard on the terms of that order if either Trustee seeks to be heard and there is a need to amend or alter the terms of the order as a consequence.
I will therefore make orders to achieve the mother receiving the items of property referred to; or otherwise retaining the property she already has; as well as the mother being solely responsible for the liabilities in her name in circumstances where these have been included in the “pool” and adjusted for in determining the amount of the splitting orders to be made.
I make the orders set out at the commencement of these Reasons.
I certify that the preceding two hundred and sixty-three (263) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 28 July 2015
Associate:
Date: 28 July 2015
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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Costs
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Jurisdiction
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