TAMLYN & TAMLYN
[2020] FCCA 89
•17 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAMLYN & TAMLYN | [2020] FCCA 89 |
| Catchwords: FAMILY LAW – Parenting – where there are three subject children – breakdown of relationship between parents – where best interest of the children considered – where mother seeks sole responsibility – where father seeks equal shared parental responsibility – where factors under s 60CC of the Family Law Act 1975 (Cth) are considered – where there is evidence of family violence – presumption in favour of shared parental responsibility rebutted – where contact between the father and the children should be limited to telephone or video link – held that it is in the children’s best interests that they live with the mother and that the mother have sole parental responsibility – PROPERTY – settlement in relation to marriage – each party seeks adjustment of property in their favour – need for finality – just and equitable distribution. |
| Legislation: Australian Passports Act 2005 (Cth), s.11 Evidence Act No 25. 1995 (Cth), s.76 Family Law Act 1975 (Cth), ss.43, 60, 61, 65, 68, 75, 78, 79, 106, 117 |
| Cases cited: B & B (1993) FLC 92-357 Bevan & Bevan (2013) FLC 93-545 Dundas & Blake (2013) FLC 93-552 Kennon & Kennon (1997) FLC 92-757 Marvel v Marvel (2010) 43 Fam LR 348 M v M [1988] HCA 68 Petruski v Balewa (2013) 49 Fam LR 116 Rice v Asplund (1978) 6 Fam LR 570 Sebastian & Sebastian (No. 5) [2013] FamCA 191 Zavala & Zavala [2019] FCCA 338 |
| Applicant: | MS TAMLYN |
| Respondent: | MR TAMLYN |
| File Number: | PAC 1404 of 2017 |
| Judgment of: | Judge Humphreys |
| Hearing dates: | 25 November 2019 – 29 November 2019 |
| Date of Last Submission: | 29 November 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 17 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Reilly |
| Solicitors for the Applicant: | Stanfords Solicitors |
| Counsel for the Respondent: | Ms Kaiti |
| Solicitors for the Respondent: | Ark Lawyers |
| Counsel for the Independent Children's Lawyer: | Dr McConaghy |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Suburb F |
ORDERS
THE COURT ORDERS THAT:
Parenting
That the mother, Ms Tamlyn, shall have sole parental responsibility for the children X, born in 2006, Y, born in 2011 and Z, born in 2011 (hereinafter “the children”).
That the children shall live with the mother.
That the children shall spend no time with the father, Mr Tamlyn, unless otherwise agreed between the parties in writing.
That pursuant to s68B(a) and s68B(b)(i) of the Family Law Act 1975 (Cth), the Court grants an injunction for the personal protection of the children and the mother, hereby restraining the father from:
a)Approaching, contacting or attempting to contact the mother and/or the child/ren except as otherwise provided in the Orders or otherwise agreed to in writing between the parties.
b)Entering, residing and/or attempting to enter any place where the mother and/or the children may, from time to time, reside including but not limited to the mother’s current residential address namely B Street, Suburb C, NSW or approaching within 500 metres of B Street, Suburb C, NSW.
c)Entering or attempting to enter any place where the mother works.
d)Entering or attempting to enter any place where the children attend school, after school care or vacation care.
e)Entering or attempting to enter, or attending at any extracurricular activity attended at the by children.
f)Assaulting, molesting, harassing, threatening or stalking the mother and/or the children.
It is noted that Order 4 is made for the personal protection of the mother and the children and has attached to it a power of arrest pursuant to
s 86C of the Family Law Act 1975 (Cth) and in the event a police officer believes, on reasonable grounds, that the father has breached the injunction by:
a)Stalking, molesting or harassing the mother or the children.
b)Causing harm, or threating to cause harm to the mother or the children.
That the father shall be at liberty to communicate with the children each Friday between 6pm and 7pm, or at such other times as agreed between the parents in writing, via telephone, FaceTime or Skype, or such means as may be agreed by the parents in writing on a telephone number to be nominated by the mother and for the purposes of this Order:
a)The father shall be and is hereby restrained from:
i.Discussing these proceedings, the content of these proceedings, and/or outcome of proceedings with the children.
ii.Make any derogatory remarks in respect of the mother or the maternal family to the children.
b)The mother shall be and is at liberty to record telephone, FaceTime and/or Skype calls between the children and the father and shall be permitted to rely on such recordings in any future proceedings, in the event it is alleged that there has been a contravention of the restraints outlined in Order 6 above.
That the father shall be at liberty to send the children letters, photographs, cards and gifts at an address nominated by the mother and in the event that the father exercises such liberty, the mother shall do all things necessary to ensure that the children are provided with the same, provided that the mother deems the content of such letters and the photographs and gifts as appropriate.
That for the purposes of these Orders, the mother shall, within 14 days of the date of these Orders, advise the father of a postal address to which the father is able to cause letters, gifts and cards to be forwarded to the children and a contact telephone number and or Skype username for the purposes of telephone communication.
That within 14 days of the date of these Orders, the mother shall cause the children to attend upon their General Practitioner for the purposes of obtaining a referral to a counsellor/psychologist to assist the children in managing their experience of:
a)Being witness to family violence.
b)Being aware of and subject to parental conflict.
c)Coping and managing grief associated with loss of face to face time with the father.
d)Any other issue deemed relevant by the General Practitioner and/or counsellor/psychologist.
That upon receiving a referral to counsellor/psychologist for the children, pursuant to Order 9 above, the mother shall cause the children to attend upon such counsellor/psychologist until the counsellor/psychologist expresses the view that the children are no longer required to attend and shall comply with all reasonable recommendations of the counsellor/psychologist.
That the child/ren’s attendance upon the referred counsellor/psychologist, as set out in the Orders 9 and 10 above, shall be confidential and non-reportable in any future court proceedings.
That for the purposes of any communication that is to occur between the parents, this shall occur via text message only and for the purposes of this Order, within 7 days of the date of these Orders, each parent shall provide a contact telephone number for such communication to occur and:
a)All communication between the parents shall be restricted to issues relating to the children only.
That the mother be entitled to travel outside the Commonwealth of Australia with the children.
Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the Minister to issue an Australian passport in the name of the children and without the necessity of obtaining the consent of the children’s father for that purpose.
A.It is noted that in the event that the father undertakes a psychiatric assessment and engages in relationship based therapy with a clinical psychologist, for a period of no less than 6 months to address any diagnosed disorder and/or to address his history of perpetrating family violence and is advised by his clinical psychologist that he no longer requires ongoing treatment, this shall be considered a substantial and significant change in circumstances of the purposes of Rice v Asplund.
Property
That within 42 days of the date of these orders, the mother shall pay the father the sum of $59.947.00 and deliver to the father the title and physical possession of a vehicle described as a “D Truck”.
That simultaneous upon compliance with Order 1 herein, the father shall transfer to the mother his right, title and interest in the property known as and situate at B Street, Suburb C in the State of New South Wales, being the whole of the land in Folio Identifier ... (herein referred to as the “B Street, Suburb C Property”).
The mother shall forthwith and simultaneously:
a)Cause the father to be released from all and any liability with respect to the mortgage encumbering in the B Street, Suburb C Property, including the transfer of such liabilities into the sole name of the mother, or, if necessary, to secure the father’s release, discharge those liabilities;
b)Indemnify the father and hold the father forever indemnified with respect to all council and water rates and any other expenses relating to or arising from the said property.
That pursuant to s 78 of the Family Law Act 1975 (Cth), each of the father and mother shall be and hereby, are declared to be the sole and absolute owners at law and in equity, of all items of furniture, furnishings, personality, chattels, jewellery and monies (where held in cash or in deposit with any bank, building society, credit union or other financial institution) presently in each party’s possession, custody or control, together with all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document, or instrument required by or to give effect to these Orders, then pursuant to s 106A of the Family Law Act 1975 (Cth), that the Registrar of the Federal Circuit Court of Australia, Parramatta Registry, shall be and is hereby authorised, empowered and directed to sign and execute such deed, documents or instrument in the place and instead or such party and to thereafter do all things and acts, as are necessary to give validity and operation to same.
That the amount of $3361.00, being the scale rate for the cost of one day of hearing, be deducted from the cash settlement to be paid to the father by the mother that forms part of the property settlement.
IT IS NOTED that publication of this judgment under the pseudonym Tamlyn & Tamlyn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1404 of 2017
| MS TAMLYN |
Applicant
And
| MR TAMLYN |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern both parenting and property matters between Ms Tamlyn (“the mother”) and Mr Tamlyn (“the father”) (“the parties”). The parenting proceedings are in relation to the children of the marriage; X born in 2008, Y born in 2011 and Z born in 2011.
The matter was heard at Parramatta Registry over 5 days, commencing on Monday 25 November 2019 and concluding on Friday 29 November 2019.
Background
The relevant background facts to the matter are as follows:
· In 1972, the mother was born. She is currently 47 years of age.
· In 1962, the father was born. He is currently 57 years of age.
· In 2002, the parties commenced a relationship and commenced cohabitation.
· In 2004, the parties purchased a property at B Street, Suburb C. To fund the purchase of the B Street, Suburb C property, the father contributed $120,000.00 towards the acquisition of the property. It is agreed that another $30,000.00 was spent on legal expenses and stamp duty. The parties borrowed $365,000.00 from Westpac bank by way of mortgage secured against the property.
· In 2006, the parties married.
· In 2008, X was born. He is currently 11 years of age.
· In 2011, twins, Y and Z were born. They are currently 8 years of age.
· Around January 2016, the mother says that she and the father had an argument, he pushed her out of the bed and she rolled out and hit her side.
· In February 2016, the mother stated that the parties separated on a final basis although they continued to live under the one roof.
· In February 2016, the father says he was assaulted by the mother and that she struck him on the face causing him to sustain a black left eye. The father alleges that two weeks later the mother attended police and asserted that he had assaulted her and sought an Apprehended Domestic Violence Order (ADVO).
· On 17 March 2016, the father was served with his first ADVO in relation to the mother which lasted a year.
· From February 2016 to March 2017, the mother says that the parties lived under the one roof during that period.
· On 8 March 2017, following an incident, police attended the parties’ residence and took the father away.
· Following this incident, the father vacated the B Street, Suburb C property.
· On 29 March 2017, the mother began proceedings in this Court.
· The mother alleges that in September 2017, the father physically assaulted her in the presence of the children. The father was again arrested and charged by police.
· On 18 April 2018, the parties were involved in Local Court proceedings in relation to the alleged assault in September. These concluded with Magistrate E finding charges of assault, occasioning actual bodily harm, were not proven beyond a reasonable doubt. Magistrate E was however satisfied that an assault occurred on the balance of probabilities and granted a further ADVO in favour of the mother.
· On 22 June 2018, interim parenting orders were made by consent, allowing the father to spend supervised time with the children at a children’s contact service at Suburb F each alternative Sunday for no less than 2 hours.
· On 10 November 2018 to 31 August 2019, the father commenced spending time with the children at Suburb F Children’s Contact Service until the centre could no longer accommodate him.
· On 1 September to 1 November 2019, the father did not spend time with children as no contact centre was available
· On 2 November 2019, the children spent time with their father at Suburb G Contact Service. This ceased due to the father breaching the centre rules.
Parenting Aspect
It is appropriate to deal with the parenting aspect of this matter first, prior to dealing with the property application.
Proposals of the Parties
On 29 March 2017, the mother filed an initiating application seeking final orders as follow:
1) That the mother have sole parental responsibility for the children.
2) The children live with the mother.
3) The children spend time with their father for two hours each week, supervised by H Family Services, Suburb F Contact Centre.
4) The father be permitted to spend time with the children during their sports training and games on a weekly basis.
On 19 June 2018, the father filed an amended response to the initiating application seeking final orders as follows:
1) The parties have equal shared responsibility for the children.
2) The children live with the father.
3) The children spend time with the mother each alternative weekend from after school Friday until the commencement of school on Monday.
4) The father to communicate with the children by telephone each weekend between 6pm and 8pm when they are in the mother’s care.
On 20 November 2019, the mother filed an amended initiating application in respect of parenting matters seeking the following orders:
1) The mother have sole parental responsibility for the children.
2) The children live with the mother.
3) The children spend no time with the father.
4) The father be restrained from removing or contacting the children and be restrained from approaching the mother’s residence.
At the commencement of the hearing, the father continued to seek orders in accordance with his amended response filed on 19 June 2018.
At the conclusion of the hearing, during the course of submissions, Counsel for the father indicated that in light of the evidence, the father was seeking amended orders that he and the mother have equal parental responsibility in relation to the children, but that they live with their mother and spend time with the father.
Pursuant to orders made by Judge Newbrun, an Independent Children’s Lawyer (ICL) was appointed to represent the best interests of the children of the marriage. At the commencement of the hearing, the Court was advised that the ICL, Dr McConaghy, had not formed a preliminary view as to the orders, which ought to be made based on the material filed. Given the significant factual disputes between the parties, the ICL reserved their position until the conclusion of cross examination and submissions.
At the conclusion of the hearing, a draft minute of order sought by the ICL was tendered to the Court. That order proposed the following:
1) The mother have sole parental responsibility for the children.
2) The children live with the mother.
3) The children spend no time with their father, unless otherwise agreed between the parties in writing.
4) Pursuant to s 68B(a) and s 68B(b)(i) of the Family Law Act 1975 (Cth) (“the Act”), the Court grant an injunction for the personal protection of the children, restraining their father from:
a) Approaching, contacting or attempting to contact the mother and/or the child/ren, except for otherwise provided in these Orders or otherwise agreed to in writing between the parties;
b) Entering, residing and/ or attempting to enter any place where the mother and/or the child/ren may reside from time to time including but not limited to the mother’s current residential address at the B Street, Suburb C Property or approaching within 500 metres of that premise;
c) Entering or attempting to enter any place where the mother works;
d) Entering or attempting to enter any place where the children attend school, after school care or vacation care;
e) Entering or attempting to enter, or attending any extracurricular activity attended by the children;
f) Assaulting, molesting, harassing, threatening or stalking the mother and/ or the child/ren;
6) It is noted that the injunction sought above is made for the personal protection of the mother and the children and has attached to it a power of arrest pursuant to s 68C of the Act and in the event a police officer believes on reasonable grounds that the father has breached the injunction by:
a) Stalking, molesting or harassing the mother or the children.
b) Causing harm, or threatening to cause harm to the mother or the children.
c) The police officer may arrest the father without warrant.
7) That the father shall be at liberty to communicate with the children each Friday between 6pm and 7pm or such other times as agreed between the parties in writing, via telephone, FaceTime or Skype or such means as may be agreed to by the parties in writing on a telephone number to be nominated by the mother.
8) The father be restrained from:
a) Discussing these proceedings or the contents of the proceedings or the outcome of the proceedings with the children.
b) Make any derogatory remarks in respect of the mother or the maternal family to the children
9) The mother shall be at liberty to record the telephone FaceTime and/ or the Skype conversations with the children and the father shall be permitted to rely on such recordings in any future proceedings in the event it is then alleged there is a contravention of the restraints outlined in the proposed order above.
10) The father shall be at liberty to send the children letters, photographs and gifts to an address as nominated by the mother.
11) Further orders were proposed in relation to the mother causing the children to obtain referral to a counsellor/ psychologist to assist the children in managing their experiences in being a witness to family violence and coping/ managing with the grief associated with the loss of face to face time with their father.
12) That in the event that the father undertakes psychiatric assessment and engages in relationship based therapy, with a clinical psychologist for no less than 6 months to address any diagnosed disorder and/or progress his history of perpetrating family violence and is advised by the clinical psychologist that he no longer requires ongoing treatment, that this shall be considered to be a substantial and significant change in the circumstance for the purpose of Rice & Asplund (1978) 6 Fam LR 570 (Rice & Asplund).
Parenting Matters
The Law – The Family Law Act 1975 (Cth)
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Act.
Section 60B of the Act sets out the objects and principles of Part VII of the Act as follows:
(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 60B(2) of the Act, relevantly provides as follows:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture
Section 61DA of the Act, relevantly provides:
(1) When making a parenting order in relation to a child, the court must 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) 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 for the child.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
This is also confirmed by s 65DAA(2)(d) of the Act:
Consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.
Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interest. Whilst the Act requires the Court to consider all the matters in s 60CC of the Act, the central issue in those proceedings is balancing the primary considerations set out in s 60CC(2) of the Act against one another. Those considerations are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2)(a) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence (s 60CC(2)(b) of the Act).
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interest. Broadly, these considerations deal with the following matters:
a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The task of applying s 60CC(3) of the Act – Additional Considerations, is an evaluative exercise that necessarily involves the trial Judge determining what weight should be given to each relevant consideration. Each of the considerations found in s 60CC of the Act must be taken into account and needs to be considered as regards to each of the three children, who are the subject of these proceedings.
Relevant Case Law
In Dundas & Blake (2013) FLC 93-552 at [87,339], the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption for equal and shared parental responsibility must be applied, until a level of satisfaction is reached that it would not be in the interest of the child for the presumption to not apply. The Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
Further, pursuant to s 43(1)(c) of the Act, the Court, in exercising its jurisdiction, has a responsibility to “protect the rights of children and to promote their welfare”.
in Marvel v Marvel (2010) 43 Fam LR 348, discussed the problems associated with making findings on disputed evidence as follows [120-122]:
As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing: s 61DB.
The issue of when the making of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions: see Goode at paragraph [82(d)]. In this case we agree with the written submissions made by the former counsel for the ICL and the oral submissions of counsel for the ICL at the hearing of the appeal that two findings of the trial Judge were inappropriate, namely that:
a) the father demonstrated a greater level of parental responsibility when the evidence on which that finding was based was the fact the majority of the children lived with him; and
b) the incidents reported by the mother constituted “low level violence” as the violence identified fulfilled the statutory definition of family violence in the Act.
In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
While the above comments relate more specifically to interim hearings, the care needed when evidence is disputed at the final hearing stage remains the same. As such, the Court has an overriding obligation to ensure that the best interests of the children are the paramount consideration and that applying various considerations in accordance with s60CC(2)(a) of the Act, greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with parents.
The Evidence
Evidence of the Mother
In the affidavit dated 19 November 2019, the mother stated that the father perpetrated physical, emotional and verbal abuse that became progressively worse over the years. There were multiple assaults which occurred in the presence of the children, with X having to call triple zero for help on some of these occasions.
The mother went on to outline eight separate police event numbers dating from 7 April 2004 through to 8 March 2017. Each of these were provided to the Court in a tender bundle from the ICL. The mother indicated that there was a current ADVO in place until April 2020.
The mother describes the domestic violence perpetrated, including being pushed out of bed on or around 28 January 2016, being called a whore, Mr Tamlyn saying that their son, X, does not look like the him and was not his in or around 14 August 2016 and being physically assaulted on 8 March 2017.
The mother alleges that on or around 17 September 2016, the father began to denigrate her, yell derogatory names about her and pushed her over in front of the children. On numerous occasions the father also threatened to harm family and friends, following communication between the mother and her family and friends.
On a number of occasions, the father suggested to the mother that she was being unfaithful to him. The mother describes one incident when she was in the shed looking for an item when she found a peaches jar with a pair of her underwear in it and the names and numbers of some of her male friends and work colleagues. When she confronted the father about this, he yelled words to the effect of “You’re a slut. You’re fucking your boss. I am going to kill him”.
On one occasion on or around 16 November 2016, the mothers describes the father coming home from work and trying to hug her. When she refused his advances, his demeanour changed and he became aggressive towards her saying words to the effect of “I am going to visit your boss and am going to slit his throat from one side to the other and watch him bleed out like a cow”. The father then left the house but returned home later, smelling of alcohol. The father became aggressive towards the mother and police were called.
The mother alleges that the father used controlling behaviour during the relationship and post separation. The mother recalled on one occasion around 1 March 2017, she discovered that the father had redirected her phone bill to his email. The mother found this out after a friend had called her saying words to the effect of “Mr Tamlyn just called my number and asked me who I was. I think it was Mr Tamlyn’s work number, can you check?” The mother confronted the father about this. The father confirmed the bill had not only been redirected to him but he had requested it to be itemised. The father said words to the mother to the effect of “I pity your boyfriend because he is dead when I find him. You are nothing but a drug addict, slut, user, no hoper”.
On or around 5 or 8 March 2017, the mother alleges that the father was physically removed from her home after he assaulted her in the presence of the children. During this particular incident, it was necessary for the eldest, X, to call the police. The mother alleges that the father chased her, caught her, put her in a head lock and dragged her back towards the house. The father put his hand tightly over the mother’s mouth and nose, preventing her from screaming and said words to the effect of “shut the fuck up, or I’m going to slit your throat and watch you bleed out like a cow”. The mother alleges that her son X physically came to her aid, yelling words to the effect of “get off mum”. Police attended about 20 minutes later. The father was arrested and removed from the property.
On 9 March 2017, a provisional ADVO was granted in the mother’s favour. In May the same year, following the Local Court hearing, the father was allowed to move back into the property but only to live in a gym office on the same property located 15- 20 metres from the main house.
On or around 5 September 2017, a further incident occurred when the children were loading timber branches and palm trees onto a vehicle. An argument ensued, the mother alleges that the father punched her and kicked her in the left shin. The mother recalls seeing the three children trying to pull their father away from her saying words to the effect of “leave mum alone, stop hitting her”. The children were directed to go to the neighbours and obtain help and police were called.
The father was again arrested by police and taken to Town J police station where he was charged with assault and a breach of ADVO from March 2017. The father was not permitted to return to the property. On 18 April 2017, the assault charge was dismissed following a defended hearing, although a final ADVO was made for a period of 2 years.
During the course of her cross examination, the mother acknowledges that she had an unenviable traffic record in relation to speeding charges however, she indicated that none of these offences occurred when the children were in the car.
It was put to the mother that in fact she had been the aggressor in the incidents and was skilled in martial arts. A number of photographs were put to the mother purporting to show that she was the holder of a number of trophies in relation to martial arts. The mother responded that she had one trophy that related to participation in martial arts which had ceased when she was 16. Further, the mother stated that the balance of the trophies portrayed in the photograph were not hers but were in fact were her father’s. In re-examination, these trophies were produced and with the exception of one trophy, which did not have a plaque on it, all but one of the trophies related to the mother’s father.
It was put to the mother that she would stand in the middle of the yard and yell out “you are going to slit my throat and watch me bleed out like a fat cow”. It was suggested to the mother that this was done in order to create the impression that she was being attacked.
The mother acknowledges that following the birth of the children, the father took 12 months off work to look after them. The mother confirmed that since separation, she had not provided any school reports or psychological reports in relation to the children to the father.
In relation to the various accounts of the children, which are contained within police reports and within the report of the family consultant, the children described their father attacking their mother and them either calling police or going to her assistance. It was suggested to the mother that she had “schooled the boys” into what to say to various Court officials and police. The mother denied this.
The mother indicates that she had taken great pains not to say anything derogatory in respect of the father in front of the boys. The mother said that the father is not a good father but she wants her boys to be of the view that he is, in order for them to maintain “some sort of relationship” with him.
Under cross examination by the ICL, it was put to the mother that the father said she injured his knee on 8 July 2017. The mother stated she was not aware of any injury to the father’s knee. The mother indicated that the father had been a sportsman and had injured his knee on a number of occasions during that activity.
The mother confirmed that on one occasion, post separation, she had agreed to take all of the children, in the presence of the father, to sports, being an activity that the children had previously undertaken and enjoyed. The mother only agreed to go on the activity with the father because she understood it would be in the presence of his two older children from his previous marriage. Having arrived at the activity, the mother found that the two older children were not present. The mother stated that a photograph taken of them at sports was staged in order to provide evidence that she did not fear any violence from him.
The mother confirmed that there had been 3 ADVOs in place for 12 months, with a further in March 2016 after she was crash tackled to the ground by the father and he threatened to slit her throat. This was the incident when X rang triple zero and requested the police attend. The mother indicated that the violence started in 2004, two years into the relationship.
The mother was questioned about what she would do if the Court made orders that there be no physical contact by the children with their father and how she would explain it to them. The mother answered that she would tell the children that their father needed to have a break in order to improve his behaviour. The mother would have no difficulty with telephone contact, subject to the father not making any derogatory comments or speaking about the Court process. In relation to the suggestion by the father in his affidavit that he was the major carer, the mother said that this was not correct and that she was the major carer. The mother again denied that she had “schooled the boys” to belittle the father.
The mother was asked about a photograph of the father, in which he appeared to have a black eye, which is contained at annexure B to his affidavit. The mother stated that she did not recall the black eye occurring during their relationship but does remember an accident prior to 2002 when the father had one. The mother denied she had caused any black eye.
The mother confirmed that the children had witnessed domestic violence in March 2017 and that they had also witnessed domestic violence on 5 September 2017. There were a number of other incidents that the children also witnessed. The mother stated that X was quite traumatised as a result of both witnessing and having to become involved in the domestic violence incidences and that he has been undertaking therapy since July 2017. X saw Ms K, psychologist, but stopped seeing her when Ms K indicated that she was no longer taking on children. The mother stated that X said he was fine and did not need to see another counsellor. The mother said that she has tried to create a safe zone at school where X’s issues are not discussed with school counsellors.
The mother also gave evidence that at least on one occasion, X had been whipped with a horse whip or other sort of whip by the father when had gone near water when he was not supposed to. The mother also expressed concern that the father has access to guns. The mother indicated that there were two guns the father had hidden in a shed. They had been removed some time ago and the mother had no knowledge of where they were. The mother gave evidence that she continues to have fears due to the threats that the father had made to slit her throat, given the fact he had previously worked as a labourer in a factory.
The mother states that the father had told X he was a lazy, a dirty pig because of bed wetting. The bed wetting had continued for some time and the mother suspects that it is a result of the trauma that X has witnessed. Since the father left the family home, the bed wetting has resolved. The mother indicated that she was very concerned that the father represented an unacceptable risk both to herself and the children, if he was to have contact with them bearing, in mind his history of domestic violence both in this relationship and in his previous relationship, where domestic violence orders had also been granted.
Evidence of the Father
The father’s evidence is set out in an Affidavit dated 18 November 2019. The father asserts that he shared in the care of the children during cohabitation including when they were young in duties such as changing nappies, bathing them, preparing their meals and taking them to medical appointments. The father asserted that he would regularly pick up the children from after school care and attend to them in the evening by getting them home, preparing their meal, feeding them, bathing them and putting them to bed.
The father confirmed that he was excluded from the family home as a result of an ADVO on 8 March 2017. The father confirmed that he has had supervised access to the children at two facilities but that he has not had supervised access at Suburb G for some weeks.
At paragraph 21 onwards, the father sets out his concerns in respect to the mother. The father asserts that he was subjected to physical abuse by the mother on a number of occasions and that she would hit and punch him during arguments. The father asserted that the mother was trained in martial arts and previously fought in tournaments and obtained various trophies and awards.
The father asserts that in February 2016, he was assaulted by the mother, struck on the face causing him to sustain a left black eye and cuts underneath his chin. A photograph was produced in relation to those alleged injuries. The father alleges that it was the mother who told the children that he had said to her that he would cut her throat and watch her bleed like a cow. The father denied ever using that phrase on any occasion.
In relation to an incident on 8 March 2017, the father gave evidence that it was the mother who commenced an argument in relation to a request that the father give back her keys and wallet. The father asserts that in fact, it was he who offered to assist X to call the police. The father admits that he had his arms around the mother and attempted to walk her back into the house. The father admits that he was later charged with assault and an interim ADVO was made in favour of the mother.
The father asserts that the mother has an ongoing history of drug use by smoking marijuana but concedes he has not seen her use marijuana since the birth of the children. The father asserts that the mother has an unenviable driving record and that on a number of occasions, when she was detected speeding, the children were in the car with her.
As to the incident on 5 September 2017, the father asserts that it was the mother who grabbed him by the shirt and started to punch him. A neighbour called the police. The father indicates that he voluntarily removed himself from the house and drove to Town J police station to report that he had been assaulted. The father concedes that criminal charges against him, in respect to assault occasioning actual bodily harm, were dismissed, however an ADVO was made for two years. An application in 2018, to allow the father to return to the former matrimonial home and reside in a second residence on the property was made but was unsuccessful.
The father alleges that the mother has frustrated his attempts to have a relationship with the children and have unsupervised time with them.
At paragraph 78, the father indicates that since his exclusion from the former matrimonial property, he has been required to reside at his place of employment at the Employer L at Town M. The father gave evidence that he sleeps in a swag in his office and there is a kitchenette and bathroom facilities which he utilises.
At paragraph 90, the father alleges that the mother had a sexual relationship with another person named Mr N. The mother has known Mr N since attending high school together. The father asserts that the mother told him that he was not the father of the children of the marriage.
At paragraph 101, the father states that the mother has been coaching the boys for the last four years in what to say to the police and counsellors. The father alleges the mother has been able to tell the boys any lies that she wants and has influenced their minds into alienation.
Under cross-examination by Mr O’Reilly, of Counsel, appearing on behalf of the mother, the father conceded that, notwithstanding orders that were made on 22 June 2018, the father was to do a number of things, including enrolling and completing a Making Choices course within 6 months, which he had still not enrolled in that course. The father said that he forgot all about it and that no one reminded him. The father did indicate however, that he had enrolled in another course, ‘Circle of Security’ and had attended a number of sessions but conceded that he had only enrolled in that course in October 2019.
The father indicated that he does not trust a word that the mother says and that he has not communicated with her for a number of years. Whilst the father was aware of the domestic violence allegations against him, he stated that the children haven’t witnessed the mother attacking him. The father denied ever physically assaulting the mother, even after separation and said that the boys are saying just what their mother has told them to say. The father sees issues in relation to the children’s future because they are in danger of mental damage as a result of their mother getting them to tell lies.
A number of incidents were put to the father including one in 2015, in which he denies pushing the mother on the back out of bed after he requested sexual intercourse and was told “no”. On 28 January 2016, a further incident occurred where the father again requested sexual intercourse and was told “no”. The father asserts that on this occasion, it was the mother who punched him and that is how he got a black eye. The father denied ever calling the mother a “slut, a bitch and a whore” and never said “fuck you, you slut”.
A number of questions were put to the father in relation to his first marriage. The father agreed that an ADVO was granted to protect his first wife on 28 September 2000. The father agreed that on 5 September 2000, he had called her a “bitch”. The father did not agree however that he said he would burn the house down. The father confirmed that he was concerned that the mother was having an affair and confirmed that he had the mother’s underwear in a jar with a list of names in the shed. In relation to the affairs, the father stated that the mother denied it, ‘like they all do’ and he might have pushed her a little bit.
It was put to the father again that he might have called the mother a “whore, a slut or a mole”. The father indicated that he was unable to remember. The father stated “that’s how women make up stories to get you booted off the property”.
The father agreed that he was a labourer by trade but had not worked in that industry for some 20 years. The father denied having any guns, stating that he handed in any guns he held some years ago.
In relation to the March 2017 incident, the father denied the incident initially occurred in front of the children and that the children were yelling at him to get off their mother. The father confirmed that X called the police and said that X knew what to do and say because his mother has been “schooling” him.
The father confirmed that he had alleged the mother was having an affair with Mr N. The father confirmed that he had attended the mother’s place of work and spoken to her boss. The father denied that the mother was made redundant as a result of him attending the premises, rather that she resigned as the company was moving to the city. The father confirmed that as a result of his concerns about the mother having an affair, he sought access to her telephone bill, including what numbers had been called. The father confirmed that the mother confronted him as to why her telephone bills were being redirected, that he called her a “drug addict, slut, user, no hoper”.
The father was asked to confirm whether or not he was staying at Suburb O and living at his place of work, which he did. Evidence was then put to the father, obtained from a private investigator, that on a number of sequential nights, he had stayed overnight at a premises in Suburb P. The father confirmed that he has a girlfriend and might stay a few nights there. The father did not think it was important to tell the family law consultant, Mr Q, that he had a girlfriend. In relation to the incident that involved keys and wallet, it was put to the father that he had covered the mother’s mouth in order to stop her from screaming. The father agreed that he had done so.
In relation to the recommendation from Mr Q that the father undertake a psychological assessment, the father stated that he didn’t need to undertake such assessment. The father stated that he would still be living at home with the mother and the boys at the former matrimonial home if she was not so greedy. Whilst the father agreed that he had withdrawn his application to the Court for the children to be DNA tested to determine their parentage, when asked “You know the children are yours”, he replied “No I don’t”.
Under cross-examination from the ICL, Dr McConaghy, the father was asked about the five counselling sessions that he had attended with Mr R in relation to anger management. When the father was asked what he had learnt, he stated that he does not have an anger management problem. The father denied that he previously had an anger management problem. When the father was asked what else he had learnt from the course, he said that he had learnt not to raise his voice and to try and listen a lot more. The father admitted that on one occasion he told the mother to get her “fat ass off the lounge”.
In relation to the father’s commencement of a ‘Circle of Security’ course in October 2019, he confirmed that he had attend three sessions. The father again was asked what he got out of the course and he said that kids will leave home and then come back to look for their parents. The father was asked if he had learnt anything in respect of parenting and he said not at this stage but he had not finished the course.
In relation to an incident where X alleged that during time with his father, the father attempted to abduct all of the children and drive to Town S, the father denied the incident occurred and stated it was made up by X. The father denied he ever whipped X saying that he had never done this or even threatened to do so. In relation to future directions and whether the father would complete a men’s domestic violence change program, he indicated that he thought an anger management course was enough.
The father agreed that when he had phone calls with the boys, he had raised issues relating to parenting and Court proceedings, however, he did not think it was inappropriate for the boys to be involved.
The father confirmed that in his application for property orders, he has asked for the boy’s toys to be sold. The father was asked whether or not this was a good idea and his response was: “Yes, so that new toys can be purchased so that they can have the same toys at home and with me”.
The father denied hearing a conversation from X that there was no way X would spend over nights with him if the Court granted such contact. The father denied hearing X say that if forced to do so, X would run away. The father denied ever saying that he would kill the children, their mother and then himself. The father agreed that on one occasion, he had to be escorted from a Court room for inappropriate behaviour in which he alleged he was not getting a fair trial. The father confirmed that whilst participating in supervised contact at a contact centre, he raised issues regarding the division of property with the children which was against centre policy. The father stated that he wanted proof of the conversation and did not think it was inappropriate to act this way contrary to centre policies.
Evidence of Family Consultant
Mr Q prepared a report dated 23 May 2019. In paragraph 3 of his report, Mr Q notes that the mother alleges the father has a long history of controlling violence which includes physical and verbal abuse towards her in front of the children, stalking, forced sex, threats to harm her, her family, her employer and her friends, as well as inhibiting relationships. Mr Q notes that the father refutes these allegations and alleges that the mother was physically abusive towards him.
At paragraph 9 of his report, Mr Q noted that X was described as having issues with anxiety as well learning difficulties. X has been diagnosed with ADHD and is struggling with basic literacy, numeracy and numeracy skills. Z and Y are described as having good physical and mental health, albeit Y is described as having some learning difficulties.
At paragraph 19 of his report, in relation to an interview with the father, Mr Q noted that he said: “She attacked me and I would always say ‘not in front of the boys”.
The father denied ever having hit the mother. In relation to an 8 March 2017 incident, the father said: “I was moved out of the house and property and went to live on the floor of my office at Suburb O”.
The father added that in December 2017, he beat the criminal charges and was allowed back into the other house. The father was referring to a demountable gym that is situated on the property at B Street, Suburb C about 20m from the former matrimonial home.
At paragraph 37 of his report, in relation to his interview with the mother, Mr Q noted that she is seeking “custody” of the children with a “long term goal of some sort of access (when The father) is better… he is violent, angry and aggressive and compulsively lies”. She added that: “The boys come out of their supervised contact very happy….my children love their father”.
At paragraph 38 of his report, the mother went on to say that: “It’s all fabricated lies that he did anything with the children…he has never ever picked the children from school…he’s taken the boys once in his life to motor cycle at Town S...”
At paragraph 51 of his report, the mother described the father as jealous and controlling stating “He has physically assaulted Mr N …a long-time friend of mine…he punched him”.
When talking about the container with a pair of the mother’s worn underpants with names and addresses, the mother agreed with Mr Q that she was inferring that the father is a pathologically jealous man. The mother went on to say “I am petrified that if he does not get his own way he is crazy enough to kill the children and kill himself”.
At paragraph 60 of his report, in relation to an interview with X, Mr Q noted that X said he is not afraid of his father, “but afraid what would happen to my mother and uncle…I am fast and (could) look after them…whenever…she is feeling sad I tell her to put it in the past”.
At paragraph 61 of his report, X went on to say that “Dad used to say bad things about mum a lot”.
In relation to Y, at paragraph 65 of his report, Mr Q reported that Y stated unequivocally, he wants to live with his mother but when advised that he was seeing his father today, he indicated that he was excited at the prospect. Y’s three wishes were “more time with dad, like every Saturday; (his parents) to stop fighting; (and for them) to not be together anymore because they might fight again.” Mr Q asked Y to describe a fight and in response he said: “Me and Y jumped on Dad’s hand so he could not hurt mum”. In respect of this, it is understood to mean not Y but Z.
In respect of Z at paragraph 70 of his report, Mr Q asked Z if he was afraid of his father and he said “No… (but) he could hurt mum”.
At paragraph 76 of his report , Mr Q stated the following:
The nature of the violence that she alleges that the father has perpetrated and/or threated is at the most serious end of the spectrum of controlling family violence. It entails actual physical harm and threats of harm - including lethal threats. She depicts the father as a psychologically vulnerable man who, she fears, is capable of abducting and/or killing himself and the children if he were to perceive himself as having been thwarted in the context of the Court case. Given this profile the evidence with respect to family violence will need to be considered carefully and the Court may consider it necessary to err on the side of caution.
At paragraph 77 of his report, Mr Q notes that it is common ground that there is documented evidence of the children having been clinically exposed to out of control and violent behaviour. Their perception is that their father represents a serious threat to their mother’s safety and wellbeing. Mr Q formed a view that their fears in this regard are genuinely felt.
Mr Q confirmed that X said he would run away if he was expected to spend overnight time with his father. Mr Q concludes at paragraph 87 of his report:
If the Court concludes that the weight of evidence with respect to the father supports a view that the father represents a serious risk of harm as described by the mother it is suggested that all contact be suspended until such time as he has undertaken a thorough psychological assessment and has been engaged in appropriate treatment. It is recommended under these circumstances that all precautions are taken to ensure the safety of the mother and the children.
Mr Q goes on to say that:
In the event that the Court finds that the level of risk that the father represents is a level of risk that is substantially less than what the mother describes or does not exists at all (as suggested by the father)… an incremental approach to rebuilding his relationship with them is suggested.
Factual findings
A - Matters of credibility
The parties’ written and oral evidence were at odds in terms of a number of issues. The mother made allegations of persistent and serious violent conduct towards her which necessitated the calling of police and for apprehended domestic violence orders to be put in place.
The father denied that he had ever been guilty of any inappropriate conduct, had never hit the mother, had not engaged in controlling or abusive behaviour or made any threats. The father claimed that the descriptions given by the children to Mr Q of them witnessing violence, was a result of the mother schooling the boys in what to say.
In the witness box, the mother was emotional on many occasions as she described incidences of domestic violence towards her that included serious assaults and threats.
The father was at times belligerent, combative and raised his voice when matters that were adverse to him were being put under cross-examination. The father’s behaviour was at times agitated and he appeared to be having difficulty in controlling his emotions when under some pressure.
In assessing the parties’ credibility, I have considered the independent evidence in relation to the father’s inappropriate behaviour at contact centres by raising issues in relation to Court proceedings. I note his previous history to domestic violence in relation to his first wife, his unsubstantiated allegations as to him not being the father of the children and his views as to the mother schooling the boys in what to say. In my view, his denials are inherently implausibility, in relation to family violence, when compared to numerous police reports and in particular the finding by Magistrate E that whilst not satisfied on the criminal standard of beyond reasonable doubt, on the balance of probability, the same standard applicable in these proceedings, Magistrate E was satisfied the father assaulted the mother.
I reject the denials of the father in relation to family violence as being simply implausible and not consistent with the overall evidence. I found the mother to be generally reliable, although in relation to some matters, such as her denials that the father had collected the children from after school care, not to be consistent with the documentary evidence that was provided. These issues, as compared to the majority of the evidence, are of a minor nature and do not shape me in relation to her overall credibility.
The father’s evidence on the other hand lacks credibility and except in some small occasions, when he admitted that he had placed his hand across the mother’s mouth to prevent her from screaming/ yelling to the neighbours, the father’s response was simply to deny, attack and blame the mother. Notwithstanding the other evidence available, including the corroborative testimony of his children to Mr Q, as to witnessing family violence and that he would hurt their mother, he maintained his denials of perpetrating family violence. The father’s evidence was not convincing and to my mind reflected a complete inability to accept responsibility for his actions.
I find that the father is not a witness of truth. I do accept the father has collected the children on occasions. In general, I prefer the mother’s evidence to that of the father’s due to the supporting evidence of her claims including police reports and accounts of the children give to Mr Q.
B – The issue of family violence
The evidence as a whole portrays a pattern of escalating violence, controlling coercive behaviour by the father, consistent with the conclusion that he has engaged in long standing family violence that has escalated into physical violence on a number of occasions. In coming to this conclusions, I place significant weight on the findings of Magistrate E that on the balance of probability, the father assaulted the mother and that the ADVO was necessary. I am satisfied based on the police reports, the transcript of the telephone call made by X when requesting police to attend the premises and the reports of the children, that the nature and level of the violence has increased over the years and has included the father alleging, what could be described as paranoid jealousy, that the mother has had affairs and that the children were not his.
Based on the evidence of Mr Q and his conclusions, I am satisfied that the children of the marriage have been exposed to family violence, in that they have witnessed repeated incidences of physical violence between their parents. I am satisfied that the father has failed to undertake courses that he was ordered to by the Court and that he has persistently sought to involve the children in family Court issues by discussing the matters, even when undertaking supervised access. This has resulted most recently in the supervised contact centre at Suburb G, refusing to participate in further supervised contact by the father with the children.
I am reasonably satisfied that not only has the father physically assaulted the mother, but he has also made significant threats to kill her, the children and himself, if he feels that he is prevented by the Courts in having contact with the children. I concur with Mr Q that the Court must consider it necessary to err on the side of caution.
Consideration
Based on a consideration of all of the evidence and the finding that I have made that the father has engaged in persistent, serious domestic violence over a long period of time, which has escalated, I have formed a view that there is a need to protect the children from further physical and psychological harm, by being exposed to family violence from their father. I am satisfied, in the interests of the children, pursuant to
s 61DA(2) of the Act, that it is not appropriate for an order to be made for equal shared parental responsibilities. I am satisfied that such an order would be inappropriate due to the high level of conflict between the mother and father.
I am satisfied that it is appropriate to allow some non-physical contact to occur between the children and their father, to maintain some sort of relationship between the father and the children, but such contact should be restricted to telephone, Skype or FaceTime once a week, together with the capacity for cards, presents and/or letters to be provided to the children from their father. I am mindful that the mother does not oppose such an order.
In coming to this conclusions, I had particular regard to s 60CA of the Act, which sets out:
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In determining what is in the child’s best interest, the Court must consider the matters set out in s 60CC(2) and s 60CC(3) of the Act. In applying these considerations, in accordance with s 60CC(2)(a) of the Act, greater weight must be given to the need to protect the child over the benefit to the child having a meaningful relationship with the parents.
Section 60CC(3)(a):
I am satisfied that the children have a meaningful relationship with their mother and will benefit from continuing that very stable relationship. I am satisfied that both Y and Z enjoy spending time with their father but are only able to do so in the limited context of supervised contact. I am satisfied that X does not wish to live with or spend overnight time with his father and that if forced to do so, would run away. I am satisfied that less weight should be given to Y and Z’s views as compared to X’s, as they are too young to fully appreciate the impact of being exposed to domestic violence.
Section 60CC(3)(b):
I am satisfied that the children have a warm and loving relationship with their mother, who they view as their primary carer. The relationship with their father has been interrupted as a result of on-going domestic violence which has resulted in ADVOs excluding the father from the family home.
I am satisfied that each of the children still love their father and would like to spend time with him, but that the capacity to do so has been negatively impacted by his continuing family violence and his unwillingness to comply with orders of the Court requiring that he undertake parenting and other courses, as well as his refusals to comply with directions and policies of supervised contact centres that he not discuss the on-going Court proceedings with the children.
Section 60CC(3)(ca):
It is common ground that the father has continued to make contributions by way of child support. It is noted however, because he has been in stable employment and that the Child Support Agency has put in place a garnishee order on his wages, his capacity to not make child payments is limited. I note however, that the father has made numerous promises to his children that he would provide them with birthday and or Christmas presents but has not done so.
Section 60CC(3)(d):
The current arrangement is that the children are residing with their mother. They are also residing, in what they regard as their family home, which is close to their school. Contact with their father has been limited to supervised contact at family contact centres. During the course of his evidence, Mr Q stated that he had no doubt that the children enjoyed spending time with their father and that they would be “sad” if contact were further restricted. As against this, there is the expressed view of X not wishing to spend unsupervised overnight time with his father and that all of the children are generally afraid of what their father could do to their mother if their father were to engage in further violence.
I am satisfied that the proposed order that contact be limited to telephone, whilst protecting the children from exposure to further domestic violence, will maintain the best relationship that can occur with their father.
Section 60CC(3)(e):
The orders proposed by telephone contact are relatively easy to implement and there should be no practical difficulties or cost in this type of contact occurring.
Section 60CC(3)(f):
I am satisfied that the mother has the best interest of the children at heart and will do everything that she can to ensure that their emotional and intellectual needs will be best met. The mother has indicated a willingness to undertake therapy in relation to the children and for the children to participate in additional schooling classes to address their already identified special needs. I am satisfied that if the children were to spend time with their father, including living with him, that these needs would not be addressed and that their emotional needs will be affected by exposure to continuing family violence if there were to be a shared parenting regime put in place.
Section 60CC(3)(g):
Whilst acknowledging the desirability of male children to have a warm, loving and close relationship with their father, I am satisfied that in the circumstances of this matter, due to the exposure to serious domestic violence, that it is not in the children’s best interest to continue to have contact with their father, other than by way of telephone.
Section 60CC(3)(h):
Not applicable.
Section 60CC(3)(i):
Bearing in mind all of the evidence, including the findings in relation to domestic violence and the denial of its existence by the father, I am satisfied that he does not have any insight into the impact of the exposure to domestic violence on the children. I am satisfied that this attitude will not change and is deeply ingrained. During the course of his evidence, Mr Q said that any change in attitude by the father would require a “deep” therapy which would include discussing issues in relation to his own childhood and in my view, a willingness to accept that he has perpetrated serious domestic violence.
At the moment, the father simply denies and attacks when allegations of domestic violence are made against him. This is evidenced by the father’s suggestion that the mother has “schooled the boys” to say lies against him.
Section 60CC(3)(j):
I am satisfied that there has been serious continuing and escalating family violence which has involved the children physically intervening to protect their mother on at least one occasion and that it has been necessary for X to call the police. I am satisfied that this has had a significant and negative impact on the children as outlined in the family report by Mr Q.
Section 60CC(3)(k):
Based on the fact that three ADVOs have been made in the mother’s favour, including the most recent one which was for a duration of two years, in circumstances where Magistrate E found that on the balance of probability, the father had assaulted and occasioned actual bodily harm to the mother and it was necessary for the father to be physically excluded from the family home, I am reasonably satisfied that there is a significant risk of further family violence unless I make orders that effectively separate the parties and ensure that further disputes and/or incidents cannot occur.
Section 60CC(3)(l):
I am satisfied that the orders which are proposed will enable some contact to occur between the father and the children, albeit by telephone, Skype or Facetime. It is noted in the orders proposed, that if the father were to engage in therapy and his relevant treating psychologist indicates that there has been significant change, this would be a matter that would fall under the principals outlined in Rice & Asplund.
In relation to the risk involved in making orders that would involve physical contact with the children, that being the risk associated with unacceptable domestic violence, the following cases were referred to me: M v M [1988] HCA 68 at paragraphs [24] and [25]. At paragraph [25] the following was said:
To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Whilst it is not submitted at any point that this matter involves the risk of sexual abuse, it was submitted that the principle in relation to unacceptable domestic violence is the same. In relation to supervised access, it was put to me that B and B (1993) FLC 92-357 (“B”) was applicable. Again, whilst this was in relation to sexual abuse, the same principle applies to domestic violence. At [79,781] of B, the following was said:
In our opinion, a trial Judge who has made a finding that an unacceptable risk of sexual abuse exists, or that sexual abuse did occur, should look to the level of trauma, in the widest sense that has been occasioned to the child or children or may be occasioned in the future, to determine whether supervised access is appropriate. If there is an unacceptable risk of the child or children being exposed to physical, emotional or psychological harm by reason of contact with the abusing parent, then an order for supervised access is not appropriate because of the Court's obligation to protect children from such harm.
The Court later said the following:
Supervised access may then be capable of being ordered for the time-limited purpose of re-establishing a relationship between the access parent and the children. Supervised access is not appropriate as a long term measure.
In Zavala v Zavala [2019] FCCA 338 at paragraph 103, Judge McGuire made the following comments in relation to unacceptable risk:
Relevantly, in the English judgement of Re: L (contact: - domestic violence) stated:
In cases of proved domestic violence, and in cases of other proved harm or risk of harm to the child, the Court has the task of weighing in the balance the seriousness of the domestic violence, the risks involved and the impact of the child against positive factors, if any, of contact between the parent found to be violent and the child. In this context, the ability of the offending parent to recognise his past conduct, to be aware of the need to change and make genuine efforts to do so, will be likely to be an important consideration.
I am not satisfied that any order for continued supervised access would be practicable given the unwillingness of contact centres to undertake ongoing supervised access due to breaches by the father with centre policies and that supervised access is normally a precursor to unsupervised access.
In the circumstances of this matter, given the nature, extent and extreme level of the domestic violence perpetrated, I am satisfied that there needs to be a finality to the proceedings and that the proposed orders will give finality.
Accordingly, I make the orders proposed at the commencement of this judgment.
Property
Each party applied for a property settlement. In respect of the parties competing s 79 applications, there is a considerable difference in the effect of the parties’ application. The effect of the mother’s orders, if granted, is that she will receive or retain 79% of the net assets, including superannuation. The father’s proposal would see the mother receive or retain 23% of the net assets including superannuation.
The following documents were relied upon:
1) Affidavit of Ms Tamlyn filed 21 November 2019 (Exhibit 8).
2) Financial Statement of Ms Tamlyn filed 21 November 2019 (Exhibit 9).
3) Trial Affidavit of Mr Tamlyn filed 19 November 2019 (Exhibit 7).
4) Financial Statement of Mr Tamlyn filed 22 November 2019 (Exhibit 11).
5) Westpac Home Loan Summary (Exhibit 16).
6) Superannuation Statement of Mr Tamlyn dated 30 June 2019, together with wage statements and bank statements (Exhibit 17).
7) Home loan application for B Street, Suburb C NSW (the B Street, Suburb C property) (Exhibit 18).
8) Balance sheet of Ms Tamlyn, together with Red Book valuation of a Motor Vehicle 1 and D Truck (Exhibit 21)
9) Addend to Ms Tamlyn’s affidavit containing updated property values (Exhibit 22).
It is to be noted that both parties, but in particular the father, did not fully comply with orders for the provisions of financial information prior to the trial commencing. It was necessary to direct the father to provide a significant number of documents. The only reliable valuation is that of the family home. The balance of the valuations are best described as estimates. The Red Book valuation for the two motor vehicles, again, are estimates of an approximately like vehicle.
Only some weight can be placed upon the father’s financial statement (Exhibit 11) in that it became apparent during the course of the proceedings that the father had withdrawn the sum of $30,000.00 in cash from his bank accounts, which he said was money he was keeping to buy a new motor vehicle. The father’s financial declaration did not contain any mention of the $30,000.00 in cash that he had. When the father was asked where the money was situated, he said he had some kept in cash in Town S and some in Sydney. The Court accordingly has proceeded on the basis that it will do the best that it can with the information that it has available to it, as to the property pool and the value of the assets contained therein.
The Law
In so far as it is relevant to this matter, s 79 Act 19 sets out the following:
1) In property settlement proceedings, the Court may make such an order as it considers appropriate:
In the case of proceedings with respect to the property of the parties to the marriage or either of them – altering the interests of the parties to the marriage in the property; or
….
2) The Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In exercising that discretion, the Court is required to take into account the matter set out in s 79(4) of the Act, which states as follows:
4) In considering what order (if any) should be made under this section in property settlement proceedings, the Court shall take into account:
a. The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-motioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
b. The contribution (other than a financial contribution) made directly or indirectly on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
c. The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
d. The effect of any proposed order upon the earning capacity of either party to the marriage; and
e. The matters referred to in subsection 75(2) so far as they are relevant; and
f. Any other order made under this Act effecting to a party to the marriage or a child of the marriage; and
g. Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The appropriate approach to adopt by the Court in the exercise of its discretion pursuant to s 79 of the Act, has been subject to some debate. In Bevan v Bevan (2013) FLC 93-545 at page [87,230] at paragraphs [59] – [61], the Full Court summarised the position in the following terms:
[59] Prior to Stanford (Stanford & Stanford (2012) FLC 93-495), property applications were commonly dealt with by reference to what the trial Judge called “a four stage process”. This process was described at [31] and [32] of his Honour’s reasons. The jurisprudential basis for the process was well established – see the line of cases cited in Hickey & Hickey (2003) FLC 93-143 at [39].
[60] The four stage (or step) process involves:
· Identification and valuation of the property of the parties;
· Identification and evaluation of contributions to the property (including property no longer owned by the parties)
· Identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extend they are relevant, the matters in s 75(2);
· Consideration of matters of justice and equity.
[61] Although the four step process has been regularly applied, the Full Court has stressed it is no more than a means to an end, since the statutory obligation is to alter existing interests only if it is just an equitable to do so.
In Sebastian & Sebastian (No. 5) [2013] FamCA 191 at paragraph [161], Young J held, that after considering the facts as set out in s 79(4) of the Act and s 75(2) of the Act, it was prudent to take a final holistic view to ensure that the outcome of the hearing, specifically any orders made to the alteration of property interests, are just and equitable.
In regard to this holistic view, in Petruski & Balewa (2013) 49 Fam LR 116 at paragraph [49], the Full Court said:
…such an evaluation “inevitably involves value judgments and matters of impression”, and accordingly it cannot be treated as “a mathematical exercise”.
Consideration
Is it just and equitable to make a property adjustment?
In this particular matter, the parties jointly own a property in B Street, Suburb C. There were varying contributions by the parties due the course of the marriage. The father has been required to vacate the former matrimonial home and has not had access to any of the assets that he left there. This includes such items as tools, horse gear and a D truck. There is also a considerable disparity in the parties’ relevant superannuation balances. Given that the Court is being asked to make final orders that will mean that the parties will no longer have joint property, I am satisfied that it is just and equitable to make a property adjustment in order that:
a)The ownership of the former matrimonial home can be transferred solely to the mother (as is her wish).
b)To recognise that during the course of their relationship, the parties jointly contributed to the maintenance of the household and the accumulation of various assets.
c)With the breakdown of their relationship, the parties are able to sever their financial relationship.
The Matrimonial Asset Pool
Having determined it is just and equitable to make orders pursuant to
s 79 of the Act, the starting point for the Court in property proceedings, is the identification of the legal and equitable interests in assets, liabilities, superannuation and financial resources as at the date of the hearing. In that regard, the parties’ balance sheet (Exhibit 21) reads as follows:
| Balance Sheet | |||
| Description | Ownership | Mother’s value | Father’s value |
| 1. B Street, Suburb C NSW | J | $1,000,000 | $1,400,000 |
| 2. Motor Vehicle 1 | W | $12,250 | $30,000 |
| 3. Westpac Home Loan Acc - ...09 | J | $5,719 | |
| 4. Westpac Personal – ...42 | W | $3,735 | |
| 5. Motor Vehicle 2 | J | $500 | |
| 6. Horse Trailer | J | $1,000 | $5,000 |
| 7. Household contents | J | $4,000 | $22,000 |
| 8. D truck | J | $12,000 | $35,000 |
| 9. Motor Vehicle 3 | H | $1,000 | $200 |
| 10. Westpac bank account | L | $2,911 | $2,911 |
| 11. Funds held in cash | L | $30,000 | $30,000 |
| 12. Motor Vehicle 4 | J | $200 | $200 |
| 13. Tractor | J | $4,000 | |
| 14. Slasher | J | $800 | |
| 15. Shipping container | J | $2,000 | |
| 16. Demountable home | J | $25,000 | |
| 17. Camping gear | J | $1,200 | |
| 18. Bikes | J | $2,000 | |
| 19. Motorbikes | J | $6000 | |
| 20. Horses | J | $2,500 | |
| 21. Horse yard | J | $10,000 | |
| 22. Horse gear | J | $10,000 | |
| 23. Business gear | J | $1,500 | |
| 24. Business gear | J | $12,000 | |
| 25. Jewellery | J | $12,000 | |
| 26. Shed tools | J | $4,000 | |
| Total | $1,073,065 | $2,045,311 | |
| Liabilities | |||
| Mortgage held with Westpac | J | $327,000 | $328,111 |
| Westpac Mastercard | J | $100 | |
| Westpac Mastercard | J | $900 | |
| Total | $328,000 | $328,111 | |
| Superannuation | |||
| Super Fund T | W | $89,119 | |
| Super Fund U | W | $77,408 | |
| Super Fund V | H | $239,535 | 239,535 |
| Total | $403,062 | $0 | |
The valuation of a vast majority of the items above are not agreed and as a result involve questions of value. Section 76(1) of the Evidence Act No 25. 1995 (Cth) provides that in the absence of a specified exception:
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
The Court is therefore, without admissible evidence, in respect of those items for which there is not a proper valuation, able to order that the items be sold and for the proceeds of the sale to be distributed according to the percentage adjustment, otherwise determined in respect of the matrimonial property. However, given regard to the nature of the relevant property and the position of the parties, I do not consider that course of action is practical.
In relation to the family home, evidence was provided by Ms W, registered valuer, by way of affidavit dated 25 November 2019. Ms W was called to give evidence and was subject to cross-examination. On the basis of Ms W’s evidence, which was not seriously challenged in cross-examination, I accept the value of the family home as $1,000,000. Redbook valuations were provided in relation to the Motor Vehicle 1 on a trading basis of an average of $9650.00 and on a private sale of $12,250.00, being an average amount. In the absence of any material to the contrary from the father, I am satisfied that the reasonable value to place on the Motor Vehicle 1, is the amount of $12,250.00.
In respect of the D Truck, which should be noted, is requested to be transferred to the father as part of any property settlement, a Redbook valuation was provided. I accept that the amount of $12,000.00 is a reasonable valuation for that truck. In terms of item 16, being the demountable home, it was put in submissions to the Court that it forms part of the valuation of the property. It was specially noted as being included within the valuation of $1,000,000 and I excluded that amount from the asset pool.
During the course of submissions, it was accepted that the horse hay, boys toys, Christmas gear and baby gear be removed from the asset pool. The tractor, slasher, shipping container, camping gear, bikes, motor bikes, horses, horse yard, horse gear, lawn mower gear, business gear, jewellery and shed tools were not given any valuation by the mother and the value was estimated by the father with no evidence to support this estimate. As no reliable valuation was provided by either party for these items, I assess they have either no or a negligible value. I therefore exclude them from the asset pool. In coming to this conclusion, I have taken account that findings made earlier as regards the reliability and credibility of the father’s evidence. I do not consider him to be a witness of truth. He has sought to hide $30,000 in cash he held. I place no reliance on his evidence except where independent and corroborated. I do not consider the father’s estimates of value to be reliable in any way. For example, he estimated the value of the B Street, Suburb C home was 40% in excess of the valuation by the licenced valuer.
In relation to the Motor Vehicle 3, I am prepared to accept the higher value provide by the mother of $1,000. Accordingly, I am satisfied that the available asset pool in terms of assets is $1,073,065 with liabilities in the sum of $328,000 and a combined superannuation pool of $403,062.
I therefore determine the balance sheet setting out the parties’ property available for distribution to be as follows:
Ownership Value Asset Value B Street, Suburb C NSW $1,000,000 2. Motor Vehicle 1 $12,250 3. Westpac Home Loan Offset Acc - ...09 $5,719 4. Westpac Personal – ...42 $3,735 5. Motor Vehicle 2 $500 6. Horse Trailer $1,000 7. Household contents $4,000 8. D truck $12,000 9. Motor Vehicle 3 $1,000 10. Westpac bank account $2,911 11. Funds held in cash $30,000 12. Motor Vehicle 4 $200 Total $1,073,315 Liabilities Asset Value 34. Mortgage held with Westpac -$327,000 34. Credit card held with Westpac $100 34. Credit card held with Westpac $900 Total $328,000 Superannuation Asset Value 37. Super Fund T $89,119 37. Super Fund T $77,408 39. Super Fund V $239,535 Total $406,062 Total Net Assets $1,151,377
Contributions
It is common ground between the parties that in respect of the purchase of the premises at B Street, Suburb C, the father contributed $150,000 being, $120,000 towards the purchase price and an additional amount of $30,000 paid towards stamp duty and legal fees.
As at the time of the purchase of their property, the mother had $45,000 in superannuation and the father $35,000 in superannuation. In terms of contribution since the separation, there is evidence that the mother was earning more than the father. Evidence was provided that the mother would pay $500 towards the mortgage and the father would pay $250. Evidence was also given that the mother controlled the family finances from 2002 until mid-2017, when money was stopped from going into their joint accounts.
It is agreed between the parties that they have both worked full time, except for the period of time following the birth of the children. The mother asserts that her contributions, during the course of the marriage, have included:
a)Washing, cooking, cleaning and otherwise maintaining the interior home.
b)Receiving and managing the bills in respect of household expenses which she arranges to pay.
c)The role as primary care giver to the children including dressing, bathing, cooking and playing with them.
d)Driving the children to and from school, taking them to medical and therapy appointments, and taking them to sporting and extra-curricular activities.
e)Assisting the children with their homework.
f)Ensuring the children’s bags are packed before school.
g)Obtaining and administrating medication.
h)Providing care to the children of the father’s first marriage.
The mother acknowledges that during the course of their relationship, she engaged with the father in a business, in which she managed the finances.
I accept that the father has made some contributions towards the care and upbringing of the children, including picking them up from school. I accept that the father is an outdoors person and that he actively assisted and took part in the renovations of the family home following the purchase and the maintenance of the grounds, of what is a large property.
I accept that the parties have made different contributions throughout their relationship in different spheres. I accept that the mother’s contributions has been as a parent, a manager of the couple’s finances, with some assistance from the father, who admitted, during the course of evidence, that he has little in a way of reading and writing skills. I am therefore prepared to accept that it was the mother who ran and administered the business.
Since separation, I accept that the mother has been responsible for all mortgage payments in respect of the joint property. The mother has also been responsible for the provision of food, school uniforms and the like in respect to the children. I accept that the father has made regular child contribution payments as a result of his wage being garnisheed by the child support agency. Since separation, I find that the father has made, other than his child support payments, little in the way of contributions to the maintenance of the home as an asset or provided assistance to the children, other than the amount required by child support payments.
Given the length of their relationship from 2002 until separation, taking into account the father’s initial contribution but the mother’s greater contribution during the course of the marriage, I am not satisfied that there should be any adjustment in favour of the father, due to his initial contribution to the purchase price of the property at B Street, Suburb C. In coming to this conclusion, I have taken into account the unchallenged contribution of $75,000 from a redundancy payment made by the mother, which was used for general living expenses, as well as the greater contribution she made through her higher wage.
Section 75(2) of the Act factors
Certain considerations in s 75(2) of the Act are not relevant to the facts in this matter. Accordingly, while I have considered all of the factors listed in s 75(2) of the Act, I will only focus on those matters that are considered to be relevant to the proceedings.
Section 75(2)(a):
The father is currently 57 years of age and the mother is currently 48 years of age. No medical evidence has been presented to the Court as to the health of the parties although, as outlined above, I am satisfied that the mother has been the subject of ongoing and serious domestic violence during the course of the marriage. The father contends that he has injuries to his knee, which he says is the result of an assault by the mother, which I not accept. I accept, he has injuries to his knee sustained during the course of his sports activities.
Section 75(2)(b):
It is common ground that the father is currently employed and has been for some considerable period of time as a Professional with Employer L at Suburb O. Wage slips provided to the Court, after he was ordered to do so, indicated a salary of $79,491.00 per annum. From this, child support payments of $453.75 is deducted per fortnight, tax of $647.00 and Super Fund V Member contributions of $251.37, leaving a net pay per fortnight of $1,701.76.
The mother is employed by Employer AA. The mother’s total average fortnightly pay is $1,811.00, with a taxable income for 2018/2019, of $75,000.00 per annum. The mother notes that she continued to maintain the father’s horse, including feeding, watering and paying for vet bills and medication before the horse passed away. I am satisfied that both the mother and father are each in stable employment and will continue to be able to work into the foreseeable future. I also accept that the mother’s employment prospects are limited by her parenting requirements.
Section 75(2)(c):
Pursuant to the final parenting orders, as outlined above, the children will continue to live with the mother and have no physical contact with the father due the issue of ongoing risk of domestic violence. I am satisfied that it is of considerable importance to the children, for reasons of stability, that they are able to stay in the current family home, given that it is located within short walking distance to the public school that they all attend. In this regard, I note that the evidence of the father was that, if the children were to live with him, he would attempt to purchase a property within the same proximate area to enable them to attend their school.
Given the difficulties the children face in terms of their psychological development, their exposure to trauma as a result of witnessing domestic violence and the need for stability in terms if a family home, I am satisfied that this is a significant matter that I must take into account in any property adjustment, so as to allow the mother to afford to be able to maintain the current family home and pay for necessary counselling for the children. I am also conscious of the fact that since separation, the father has been able to save an amount of $30,000 in cash, which he did not disclose in his financial statement, as he was attempting to hide the asset.
Section 75(2)(d):
For the same reasons as indicated above, I consider that the capacity of the mother to be able to afford to maintain the current family home is an overriding consideration in relation to any property settlement. I am also satisfied the mother will be required to fund significant counselling costs with respect to the children as a result of the trauma witnessed from domestic violence at the hands of the father. It is also clear the children have some special needs in relation to their education and may require additional assistance to fulfil their potential.
Section 75(2)(f)(ii):
During the course of the marriage, the father’s superannuation has increased significantly as compared to the mother. This is due to the fact, as I understand it, of the particular nature of the Super Fund V scheme, which provides very high benefits. The mother on the other hand has not been able to accumulate the same amount of superannuation during the relevant period. I take account however, that the mother is some ten years younger than the father and will most likely continue working a longer period. This will enable her to accumulate further superannuation in the future. I am also satisfied that the mother is restricted in her employment options due to her responsibilities for caring for the children and this will limit her earning capacity and superannuation benefits in the future. I am not satisfied it would be just and equitable to order a transfer of the parties various superannuation benefits to achieve equality. Rather superannuation will be taken into account in the overall property orders and reduce any cash payment by the mother to the father.
Section 75(2)(g):
The mother has continued to reside in the former matrimonial home and has maintained a reasonable standard of living in all of the circumstances. Whilst the father stated in his affidavit that he was forced to sleep in a swag at his place of work, I reject this claim based on the private investigator material tendered in evidence that indicates that he is co-habiting with another woman in Suburb P. I am satisfied that the mother has a superior motor vehicle as compared to the father and that he may need to buy a vehicle in the near future. However, I note that since separation, the father has managed to save $30,000.00 in cash, which indicates that he has a reasonable standard of living and is able to save money.
Section 75(2)(k)
I am satisfied that due to the extreme family violence, which I have outlined above, that this has affected the earning capacity of the mother. The mother indicated that during the course of the marriage, due to the inappropriate behaviour of her father attending her place of work, she took a redundancy. Due to the mother’s caring responsibilities post separation, she has been unable to progress to a higher position and in fact deposes that she took a demotion in order to provide more time for the children. Any child support required under the Child Support Assessment Act 1989 (Cth), is provided by the father. I take account that the fact that the father is and will continue to pay child maintenance as assessed which has been set out above.
Section 75(2)(o):
Submissions were put to the Court by counsel for the mother that an adjustment should be made in favour of the mother, in accordance with the decision of the Full Court of the Family Court of Australia in Kennon v Kennon (1997) FLC 92,757 (”Kennon”) at page [84,294], where Fogarty and Lindenmayer JJ had this to say:
Where there is a violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitle to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of ‘negative contributions’ which is sometimes referred to in this discussion…
However, it is important to consider the ‘floodgates’ argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters – circumstance which proved so debilitating in the pasts. In addition, there is the risk of substantial additional time and cost.
In terms of the matters considered in Kennon, I am satisfied that this is an exceptional case. The family violence, which has been outlined to the Court, is of an exceptional nature involving assaults and threats of extreme violence including threats to “slit your throat and watch you bleed out like a cow”. There have also been unsupported allegations of the mother being unfaithful and an assault on a person who was perceived to have been conducting the affair with the mother. This family violence is denied in its totality by the father, yet there is an overwhelming case against him of the commission of what has been described by the Family Consultant as family violence at the extreme end of the scale. As I have indicated above, I am satisfied that it is not in the children’s interest that physical contact take place. I am satisfied that this case falls within the exceptional circumstances as outlined in Kennon and that there should be a 5% adjustment in favour of the mother, in addition to any other adjustment that I consider to be just and reasonable in all of the circumstances.
Finding
Having regard to all of the evidence and the relevant sections in s 75(2) of the Act, I am satisfied that there should be a 15% adjustment in favour of the mother in relation to the totality of the matrimonial property. I am further satisfied that there should be an additional adjustment of 5% in favour of the mother, as undated above, on the basis of the Kennon argument.
I am satisfied that this can be achieved by taking into account a pooling of all assets, as I have set out above, including superannuation. I have also taken into account that the father seeks, as part of any property settlement, the transfer of the D Truck into his own name.
From the total asset pool of $1,151,377.00 the mother takes 70% or $805,964.00 and the father takes 30% or $345,413.00. The father’s 30% is to be made up as follows:
| Item | Value ($) |
| D truck | 12,000 |
| Motor Vehicle 3 | 1,000 |
| Westpac bank a/c | 2,911 |
| Cash | 30,000 |
| Super Fund V | 239,535 |
| Sub-Total | 285,466 |
The mother will make a cash payment to the father of $59,947 to make up the total of $345, 413.
The mother is to take the family home, Motor Vehicle 1, retain her superannuation and any cash at bank in her name. In addition, the mother is to retain any assets currently situated at the former matrimonial home, including furniture, tools, horse gear and the like that I excluded from the balance sheet.
Application for Costs
During the course of the hearing, numerous applications for adjournments were made by Counsel for the father, Ms Kaiti. These applications included time to consult with a valuer who had not previously been retained and evidence filed as to the difference in the claim by the father that the former matrimonial home was worth $1.4m as compared to the mother’s evidence of a valuation of $1.0m.
Further, at the conclusion of evidence on the Thursday morning, Counsel for the father sought an adjournment until the next morning to enable her to prepare closing submissions. This was not withstanding directions made at the beginning of the trial that Counsel were to be prepared to proceed to submissions immediately following the close of evidence. While the matter was set down for 5 days, it could have, in my view, been properly finalised in 4 but for the delays occasioned by the father.
Counsel for the mother sought costs of one day at the scale rate of $3361.00 plus a setting down fee of $640.00 to be paid by the father, being the costs thrown away due to the delays in the hearing due to the necessity for adjournments.
Section 117 of the Act sets out that in proceedings under the Act that are subject to s117AA and s117AC, each party shall bear his or her own costs. Those sections are not relevant to these proceedings. Section 117(2A) of the Act sets out various considerations the Court must consider in making any cost order. In terms of these considerations, I note that the father was legally aided due to the allegations of domestic violence. I am satisfied that the father failed to comply with various Court orders in relation to financial disclosure and sought to call evidence as the matter progressed at trial. I have not been advised of any settlement offers being made by any party. I note the conduct of the father in seeking to hide the sum of $30,000.00, which he withdrew from his bank account and failed to disclose in a financial statement he was ordered to provide during the course of the hearing.
I am satisfied that the claim for costs is reasonable in the circumstances, in that the hearing time was extended for one day as a result of the conduct of the father. I am not prepared to allow the claim for $640.00. The amount of $3361.00 may be deducted from the cash settlement to be paid to the father by the mother that forms part of the property settlement orders made above.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 17 January 2020