Tarelli & Langley (No. 4)
[2020] FamCA 1095
FAMILY COURT OF AUSTRALIA
| TARELLI & LANGLEY (NO. 4) | [2020] FamCA 1095 |
| FAMILY LAW – CHILDREN – Where matter was remitted by the Full Court for re-hearing – Risk to child in either parent’s care – Assessment of least worst risk to the child – Mother primary carer of child for first four and a half years until the Department was granted sole parental responsibility for the child by Court order in 2017 and child was removed from the mother’s care and placed into the father’s care– Where the father has pleaded guilty to three charges of common assault against the mother in mid-2020 and has been sentenced to a suspended sentence of 18 months imprisonment – Findings the mother was subjected to violence perpetrated by the father during and post the relationship – Where the mother suffers from complex PTSD and is unable to spend time with the child whilst he remains in the care of the father – Where the father does not admit any violence towards the mother – Where the mother has engaged multiple health professionals for assistance – Where the presumption of equal shared parental responsibility is rebutted – Orders made that it is in the best interests of the child to transition to the sole care of the mother and spend supervised time with the father and time weekly with his sister as this is the only order that will permit him to have a relationship with both of his parents. FAMILY LAW – PROPERTY – Where it is appropriate to assess the property on an asset-by-asset basis – Where the mother and her mother made the overwhelming initial and ongoing financial contributions to the acquisition, maintenance and conservation of the Suburb C property – Where the father’s contribution to the Suburb C property in paying the mortgage 12 months post separation and ongoing rates and taxes is outweighed by his retention of joint assets being a redundancy and the first home owner’s grant – Where the father has assets overseas which he failed to value and to which the mother made no contribution together with superannuation in Australia – Where the mother’s contribution to the Suburb C property is assessed at 90% – Where there is a nexus between the violence perpetrated upon the mother by the father and her current incapacity to work into the future – Where the mother will have full time care of the child – Mother’s future needs assessed at 10% under s 90SF(3) of the Act – Orders made for father to transfer his interest in the former matrimonial home to the mother – Father to retain his overseas assets and his superannuation. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 90SM, 90SF(3) |
| B v B (1988) FLC 91-978 Britt &Britt (2017) FLC ¶93-764 Goode & Goode [2006] FLC 93-286 M v M (1988) 166 CLR 69 MRR v GR (2010) FLC 93-424 Norbis v Norbis (1986) FLC 91-712 |
| APPLICANT: | Mr Tarelli |
| RESPONDENT: | Ms Langley |
| INTERVENOR: | Secretary, Department of Communities and Justice |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | PAC | 4311 | of | 2014 |
| DATE DELIVERED: | 18 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 4, 5, 6, 7, 10, 11, 13, 14 August 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Shaw |
| SOLICITOR FOR THE APPLICANT: | F W Ewart & Ewart |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Adam Jones Solicitor |
| COUNSEL FOR THE INTERVENOR: | Mr Harper |
| SOLICITOR FOR THE INTERVENOR: | Crown Solicitors Office |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Messner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
Orders
That all previous orders are hereby discharged.
At the expiration of two weeks from the date of these orders, the child D born … 2013 (“the child”) shall live with the mother and the mother shall have sole parental responsibility for the child.
The mother or her nominee shall forthwith advise the father by email of any serious and/or major medical event in relation to the child together with the name of the treating medical practitioner/s and/or hospital and the father is hereby permitted to make direct contact with those treatment providers to ascertain the medical status of the child.
That the father spend supervised time with the child once per month, for a period of four (4) hours, commencing on a date to be determined by the parties, and that the father’s time with the child be supervised either by a paid professional, or occur at a contact centre with the father to meet all costs of supervision.
That the child spend time with his sister BD born … 2018 (“BD”) at a venue nominated by the mother for a period of not less than two (2) hours each week and the father is restrained from being within three (3) kilometres of that venue.
Within 48 hours of the date of this order the mother, and the maternal grandmother if she wishes, is to make an appointment with Mr M to receive therapeutic assistance and advice as to the transition, age appropriate communications with the child in relation to the child’s parental circumstances and his change in living circumstances from the father’s primary care to the mother’s primary care.
Within 48 hours of the date of this order the father, and Ms S if she wishes, is to make an appointment with Mr M to receive therapeutic assistance and advice as to the transition, age appropriate communications with the child in relation to the child’s parental circumstances and his change in living circumstances from the father’s primary care to the mother’s primary care.
Both parties will accept the reasonable directions and advice of Mr M as to the age appropriate manner in which the child will be advised of his pending change of his residential circumstances by each of them.
The mother shall authorise Mr M to consult with Associate Professor LL from time to time.
Both parties are to continue to work with Mr M until Mr M discharges that party from further attendance.
The mother shall authorise Associate Professor LL to consult with Mr M from time to time.
The mother shall ensure that the child continues his primary education at BC School at Suburb BG.
The father can contact BC School to make arrangements for copies of the child’s school reports, newsletters, and order forms for school photographs to be forwarded to the father.
The father shall be restrained from attending at BC School or B Street, Suburb C.
Neither party shall discuss the Family Law proceedings, Criminal Law proceedings, Supreme Court proceedings other than in accordance with the therapeutic advice given by Mr M.
Neither party is to denigrate the other to the child within his presence of hearing and both parties are to restrain as far as possible any other person from denigrating the other parent or members of that parent’s household to the child in his presence of hearing.
The Court discharges the orders appointing an Independent Children’s Lawyer.
That the father forthwith cause the transfer to the mother of all his right, title and interest in the property at B Street, Suburb C and simultaneously remove any caveat lodged on the title and the mother shall simultaneously refinance the mortgage secured on the title such that the father is removed as a borrower or mortgagor.
Both parents are to pay to the Department of Communities and Justice the sum of $15,000 in respect of Professor TT’s Report within 120 days.
All other assets in the parties’ names including superannuation be declared their assets.
That there be a permanent stay on the orders of Judge Harman dated 8 July 2015.
All outstanding interim applications are dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tarelli & Langley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 4311 of 2014
| Mr Tarelli |
Applicant
And
| Ms Langley |
Respondent
And
| Department of Communities and Justice |
Intervener
REASONS FOR JUDGMENT
This matter concerns the parenting arrangements for the parties’ son D (“the child”), born in 2013, and whether he should live with his mother or his father. He currently lives with his father and has done so since 2017 when the Department of Communities and Justice (“the Department”) placed him in his father’s care exercising their sole parental responsibility powers awarded to them in an interim decision dated 18 September 2017, some five weeks out from the final hearing listed to commence on 23 October 2017.
D has not seen his mother since 2018 except at the interview with the Single Expert Professor TT on 24 July 2020 for the purposes of preparing a report in these proceedings.
There is also a property aspect to the matter. The matter is a re-hearing after a successful appeal by the mother against a decision of a Family Court Judge.
Mr Schonell of senior counsel appeared for the mother, Mr Shaw of counsel for the father, Ms Messner of counsel for the Independent Children’s Lawyer (“ICL”) and Mr Harper of counsel for the Department.
Material Read
The material I read for the father was as follows:
a)Affidavit of the father filed 15 July 2020;
b)Affidavit of the father filed 31 July 2020;
c)Affidavit of the father filed 2 August 2020;
d)Financial Statement of the father filed 10 June 2020;
e)Affidavit of Ms S filed 10 June 2020;
f)Financial Statement of Ms S filed 10 June 2020.
The father’s exhibits:
a)Father’s exhibit 1: Father’s case outline;
b)Father’s exhibit 2: Father’s balance sheet;
c)Father’s exhibit 3: Page 173 of the transcript of Family Court proceedings dated 24 October 2017, lines 5-45;
d)Father’s exhibit 4: Page 387 of the transcript of Family Court proceedings dated 25 October 2017;
e)Father’s exhibit 5: Page 000841-000854 of the Family Court Appeal Book containing a transcript of proceedings in the Local Court;
f)Father’s exhibit 6: Text messages between the mother and the father of a conversation of things the mother wished the father to buy from Country BF;
g)Father’s exhibit 7: Text messages sent from the mother to Mr II dated 16 December 2013;
h)Father’s exhibit 8: Costs memo on behalf of the father;
i)Father’s exhibit 9: Page 345 of the transcript of Family Court proceedings dated 25 October 2017;
j)Father’s exhibit 10: Account summary document indicating the home-loan is overdrawn by $8,316;
k)Father’s exhibit 11: Three photographs of rooms inside the Suburb CC property;
l)Father’s exhibit 12: The mother’s Statement of Claim seeking damages, and father’s Defence filed in the Supreme Court proceedings;
m)Father’s exhibit 13: Father’s tender bundle.
For the mother:
a)Affidavit of the mother sworn 22 July 2020;
b)Affidavit of the mother sworn 3 August 2020;
c)Financial Statement of the mother filed 31 July 2020;
d)Affidavit of Ms OO filed 20 July 2020;
e)Affidavit of Mr M filed 16 July 2020;
f)Affidavit of Professor LL AM filed 16 July 2020;
g)Affidavit of Dr BJ filed 15 July 2020;
h)Affidavit of Ms KK filed 15 July 2020;
i)Affidavit of Mr J filed 23 October 2017.
The mother’s exhibits
a)Mother’s exhibit 1: Mother’s case outline;
b)Mother’s exhibit 2: Minute of Order sought on behalf of the mother;
c)Mother’s exhibit 3: E.R.I.S.P Transcript of the father, with the relevant section referring to the police interview with the maternal grandmother;
d)Mother’s exhibit 4: The father’s Affidavit of 15 December 2016 relating to parenting only;
e)Mother’s exhibit 5: Child Dispute Memorandum dated 19 March 2015;
f)Mother’s exhibit 6: FaCs Case Notes dated 18 March 2015;
g)Mother’s exhibit 7: E.R.I.S.P Transcript of the father dated 3 May 2019;
h)Mother’s exhibit 8: Father’s Initiating Application dated 10 September 2014;
i)Mother’s exhibit 9: Paragraphs 16 and 19 of the father’s Affidavit dated 22 April 2015;
j)Mother’s exhibit 10: Father’s complete access account, statement 30 dated 1 November 2012 to 13 January 2013;
k)Mother’s exhibit 11: Withdrawal of mortgage document dated 14 January 2015;
l)Mother’s exhibit 12: Report from the BK Organisation dated 29 April 2013;
m)Mother’s exhibit 13: Mother’s costs notice;
n)Mother’s exhibit 14: Mother’s minute of orders sought and outline of submissions.
For the Independent Children’s Lawyer:
a)ICL exhibit 1: ICL’s Case Outline;
b)ICL exhibit 2: ICL’s tender bundle;
c)ICL exhibit 3: Sentencing Assessment Report of Mr Tarelli;
d)ICL exhibit 4: Minute of Order sought on behalf of the ICL;
e)ICL exhibit 5: Recording of the father’s sentencing in the District Court;
f)ICL exhibit 6: Clinical notes of Professor LL;
g)The ICL requested I read the entirety of the Department’s file.
For the Department :
a)Affidavit of Ms N filed 13 July 2020;
b)Intervener’s exhibit 1: Sentence of Mr Tarelli in both an oral recording and transcription.
Court exhibits:
a)Court exhibit 1: Professor TT’s Expert Report dated 3 August 2020;
b)Court exhibit 2: Joint balance sheet.
The following were cross-examined:
a)In the father’s case:
i)The father;
ii)Ms S, the father’s de- facto wife;
b)In the mother’s case:
i)The mother;
ii)Ms OO, the maternal grandmother;
iii)Ms KK, the mother’s counsellor;
iv)Mr M, the mother’s treating therapist;
v)Professor LL, the mother’s treating psychiatrist.
c)For the Intervener:
i)Ms N, the assigned case worker.
d)Professor TT.
Procedural Chronology
The father commenced proceedings in the Federal Circuit Court in Parramatta by way of Initiating Application on 10 September 2014 and sought orders for the child to live with the mother and spend time with him.
On the first return date of 21 October 2014 the mother did not appear, and orders were made for substituted service.
On 30 January 2015, orders were made for the mother to file material, for the parties to attend a Child Dispute Conference and for the appointment of an Independent Children’s Lawyer.
On 30 January 2015 the mother filed an Application in a Case seeking the proceedings be transferred to the Sydney Registry of the Federal Circuit Court.
On 23 March 2015, orders were made by Judge Harman requesting Family and Community Services (“FaCS”) intervene in the proceedings.
On 8 July 2015 the mother filed a Response seeking orders that she have sole parental responsibility for the child, for the child to live with her and spend no time with the father.
On 8 July 2015, FaCS was granted leave to intervene in the proceedings and interim parenting orders were made by consent for the child to live with the mother on the condition that she make the child available to the Department intermittently, and for the child to spend supervised time with the father. Further orders were made for the mother to be entitled to sole and exclusive occupation of the Suburb C property. The matter was transferred to the Family Court of Australia at Parramatta.
On 11 December 2015, consent orders were made appointing Dr H as the Single Expert to prepare a report in relation to parenting matters.
On 11 March 2016 the mother filed an Application in a Case seeking that orders made on 8 July 2015 for the father to have supervised time with the child be suspended. Judgment in this Application was not delivered until 27 June 2017 and the Application was dismissed.
On 18 July 2016, Dr H’s Single Expert Report was released.
The father filed an Amended Application for Final Orders on 16 December 2016 seeking he have sole parental responsibility, the child live primarily with him and spend time with the mother as determined by the Court.
On 20 July 2017 the matter was set down for final hearing for five days commencing Monday 23 October 2017.
On 11 August 2017 the mother filed an Amended Response. The mother also filed an application to adjourn the October 2017 hearing.
On 8 September 2017, leave was granted to FaCS to file an application in Court seeking sole parental responsibility for the child with their intention being that the child would live with the father. The mother, unrepresented at the time, sought an adjournment of the application given she had no notice of this application. Her application was dismissed and the interim hearing proceeded.
The Judge made the orders sought by FaCS resulting in the child being immediately placed by FaCS into his father’s care that afternoon from his preschool. The Court also ordered the mother was to spend time with the child as directed by the Secretary or his delegate.
The final hearing commenced 23 October 2017 and the matter was heard over five days and then for a further day on 13 November 2017 and judgment was reserved.
On 28 May 2018 final judgment had not been delivered and the mother filed an application to reopen the proceedings, supported by a report of her treating psychiatrist, outlining that the mother was not able to spend time with the child whilst he lived with the father due to the consequences of post-traumatic stress disorder (“PTSD”) she suffered from. The application was opposed by FaCS and the father and not supported by the Independent Children’s Lawyer and was dismissed.
On 27 June 2018 the trial Judge handed down final judgment and made orders for the Department and the father to have shared parental responsibility for the child for the first 12 months, for the father to then have sole parental responsibility for all aspects of his care except for the mother’s time with the child, which would be shared between the Minister and the father for a further 12 months and thereafter allocated to the father. Orders were made for the child to live with the father and spend supervised time with the mother. Property orders were also made.
On 24 September 2018 the mother filed a Notice of Appeal of the Final Orders made 27 June 2018.
On 26 September 2018 orders were made for the mother to pay the father’s costs arising from the application of the mother of 28 May 2018 to re-open proceedings.
On 18 January 2019 the mother filed an Amended Notice of Appeal.
On 15 February 2019 the Appeal was heard before the Full Court comprising their Honours Ainslie-Wallace, Ryan and Aldridge JJ. The appeal was conceded and the matter remitted for re-hearing. The final orders were set aside, and the interim orders of 8 September 2017 became the operative orders.
On 17 June 2019 the proceedings were transferred to the Sydney Registry of the Family Court and were listed before Justice Henderson on 11 July 2019.
On 11 July 2019 the matter was set down for Final Hearing on 23, 24, 27, 27, 29, 30 April and 1 May 2020. These dates were vacated on 15 November 2019 due to the unavailability of an expert’s report.
On 19 September 2019 orders were made for Professor TT to prepare a further Single Expert Report in relation to parenting.
On 15 November 2019 Justice Henderson made a 102NA order given the serious and concerning allegations the mother made of the violence perpetrated upon her by the father.
On 11 December 2019, Justice Henderson ordered the final hearing be listed on 4, 5, 6, 7, 10, 11, 12 August 2020.
The matter was listed on 21 February 2020 for hearing by way of submissions of the father’s interim application to vacate the final hearing dates until after the determination of the father’s criminal trial. Judgment was reserved and delivered on 4 March 2020 where orders were made vacating the Final Hearing dates of 4, 5, 6, 7, 10, 11 and 12 August 2020.
The mother filed an appeal of these orders on 4 May 2020, and the order vacating the trial was stayed.
The appeal was expedited and heard before Justice Ryan on 15 May 2020. The appeal was allowed and the final hearing dates were reinstated.
On 3 August 2020 Professor TT’s Single Expert Report was released to the parties.
The matter was heard on 4, 5, 6, 7, 10, 11 and 13 and 14 August 2020 before Justice Henderson and judgment reserved.
Chronology
The mother is Ms Langley, born in 1974 aged 46.
The father is Mr Tarelli, born in 1978 aged 42.
D (“the child”) was born in 2013 and is 7 and a half years old.
In May 2004 the mother purchased a unit at Suburb CC (“the Suburb CC property”) for $475,000.
In March to April 2012, the mother and father commenced their relationship.
In late May 2012 the mother discovered she was pregnant.
The mother asserts the father perpetrated violence upon her during the relationship on the following occasions including pushing, shoving, threatening statements, sexual assaults, denigration and name calling:
a)11 October 2012;
b)December 2012;
c)August 2013;
d)12 November 2013;
e)2 December 2013;
f)26 December 2014;
g)29 December 2013;
h)8 January 2014;
i)12 January 2014;
j)15 January 2014;
k)21 January 2014;
l)3 March 2014;
m)30 March 2014;
n)November 2014;
o)17 November 2014;
p)9 March 2015.
In June 2012, the mother asserts that the father commenced living in the Suburb CC property whilst the mother lived with the maternal grandmother at her home in Suburb BL. The mother asserts the father was verbally abusive of her from this time and financially controlling.
The father asserts the parties lived at the Suburb CC property together much earlier than the mother asserts.
In or around September 2012, the mother and father commenced living together in the Suburb CC property. At this time, the mother asserts the father became physically violent towards her.
On 11 October 2012 the mother reported to Suburb CC Police wherein the mother asserted that the father was aggressive towards her, pushed her and grabbed both her wrists with force. The father was not charged with this offence until October 2019.
On 11 November 2012 the mother ceased working in preparation for the birth of the child.
In December 2012 the sale of the Suburb CC property was completed netting a profit of $376,493.
Prior to the sale, some renovations were carried out on the property by the mother and father.
Simultaneous with the sale of the Suburb CC property, the mother and father settled the purchase of B Street Suburb C (“the Suburb C Property”) at $750,000.00 in the father’s sole name. The mother applied the proceeds of sale of the Suburb CC property to this purchase, and obtained two loans from the maternal grandmother of $37,500 for the deposit as well as an amount of $29,260. The father obtained the balance of monies needed to fund the purchase of the property being a loan of $460,000.00 from the Commonwealth Bank.
Renovations were carried out on the Suburb C property by the parties.
In early 2013 the mother began to suffer from panic attacks.
In January 2013 the mother commenced to consult with Ms L, clinical psychologist. Ms L saw the mother on seven occasions up to June 2013.
D is born in 2013.
In or around late May to early June 2013 the mother began working with Ms BB from the BK Organisation. The mother attended counselling appointments approximately once a week.
On 6 August the father, mother and child travelled to Country BF to visit the father’s family, and then to Country BE to visit the mother’s aunt and uncle. They returned on 19 September 2013.
In Country BF and on 13 August 2013 the mother asserts the paternal grandmother pulled out a clump of the mother’s hair following a dispute regarding the opening of a window. The mother and the child stayed at a hotel for a week, and then at the house of a relative of the father’s for a further week.
On 7 November 2013 the Department (previously known as FaCs) became involved with the family for the first time. On this day a Risk of Significant Harm (“ROSH”) Report 1 is received. It reports that the mother was unwell and could not care for the child who was also unwell. A referral is made for the mother to attend AA Group, assessed as a suitable support service for the mother.
The mother made a report to police on 11 October 2017 of the acts of violence and sexual assaults the father had perpetrated upon her.
On 11 October 2019 the father was charged with the following offences:
a)Four charges of common assault (dv) T2;
b)Destroy or damage property <=$2000 T2;
c)Eight charges of sexual intercourse without consent;
d)Five charges of assault with act of indecency (dv) T2;
e)Assault occasioning actual bodily harm (dv) T2;
f)Stalk/intimidate intend fear physical etc harm (domestic) T2.
On 12 June 2020 the father signed a statement of agreed facts in relation to his plea of guilty in relation to the following three offences:
a)Sequence 2 – Common Assault;
b)Sequence 18 – Common Assault;
c)Sequence 23 – Common Assault.
In August 2020 the father was sentenced for these three offences to a term of imprisonment for 18 months but was released on bail under strict reporting conditions.
On 17 December 2013 the mother put a dirty nappy in the father’s soup following a verbal dispute. Both parents attended Suburb C Police Station, which is over the road from their home, and left the child alone in the house.
On 21 December 2013, ROSH Report 2 is received by the Department in relation to the incident described above.
In December 2013 the mother contends the relationship ended, and the parties separated under one roof.
On 8, 12, 15, and 21 January 2014 the mother alleges that the father committed no less than four sexual assaults against her and he was charged with these offences on 11 October 2019.
On 12 January 2014 the mother alleges the father grabbed the child’s balloon and burst it whilst the child was holding it.
On 8 February 2014 the mother, father and child travelled to Country BF to attend the paternal grandfather’s funeral.
On 16 February 2014, and whilst in Country BE, the mother asserts the father, who was driving, late at night, in a storm on poor mountain roads and driving too fast, attempted to kill her and the child by driving into a tree. The father said they were arguing and the mother hit him causing his glasses to fall off and he swerved off the road.
On 20 February 2014 the father contends the relationship ended following the father fleeing from the Suburb C property as a result of being confronted by the mother with two kitchen knives. The father exited the home in his underwear to Suburb C Police Station and the mother was arrested and charged with common assault.
Between February 2014 and 7 September 2017, the mother was the primary carer of the child.
On 21 February 2014 ROSH Report 3 is received by the Department relating to the incident of the father fleeing in his underwear at physical separation.
On 21 February 2014 a provisional Apprehended Domestic Violence Order (“ADVO”) is made naming the mother as the defendant and the father as the protected person. This ADVO is ultimately dismissed.
The interim ADVO is heard on 27 February 2014. The father admitted that his statement provided to the police on 20 February was not correct. The mother assisted the father to write an updated statement inconsistent with the one made to the police on 20 February 2014.
On 27 March 2014 the mother asserts that the father and mother separated on a final basis. The father ceased to reside in the Suburb C property.
In March 2014 the father commenced to pay child support of about $300 to $350 per month.
The mother contends that between 30 March 2014 and 17 November 2014 the father perpetrated at least five major incidents of violence towards her such as forcing entry into the Suburb C Property without consent and verbal threats of violence.
On 19 April 2014 two risk of harm reports were received by the Department in relation to an incident that occurred on 15 April 2014 where the mother left the child on his own at the workshop of a friend of the father’s, Mr II, and on 19 April 2014 when she left the child at Suburb C Police Station. The father was in AT Town on 19 April 2014 and at work on 15 April 2014. He left his work to collect the child on both occasions. The child was returned to the mother.
In April 2014 the Department opened a case plan with the family.
On 24 April 2014 Ms BN, caseworker, participated in a family conference with the mother at the request of Ms BB to explain to them the role and involvement of the Department.
On 28 April 2014 the child commenced to attend O Child Care.
On 4 May 2014 the mother contends the father attended the Suburb C property uninvited and kicked the dog.
On 30 May 2014 ROSH Report 4 is received by the Department reporting that the father kicked the door down to the Suburb C residence when the mother refused him entry.
In June 2014 the mother commenced to see Ms L again regularly until 7 February 2017.
On 10 September 2014 the father filed in the Federal Circuit Court seeking final parenting and property orders.
On 13 October 2014 concern is expressed by Department caseworker Ms HH regarding the father attending the Suburb C property unannounced.
On 4 November 2014 the mother discussed with Ms L the alleged sexual assaults by the father in January 2014.
The mother commenced to attend the BQ Centre on 13 November 2014 for one on one counselling sessions primarily with Ms KK. Their last session was on 2 July 2015.
The father commenced a relationship with Ms S at the end of 2014. The father and Ms S have lived together in their current home since 2016.
On 12 December 2014 the ADVO proceedings where the mother is named as the defendant and the father as the protected person is dismissed after final hearing.
On 13 December 2014 the father entered the Suburb C property unannounced and took a TV from the home whilst the maternal grandmother was present. The police attended the home and took a statement from the maternal grandmother. The maternal grandmother asserts the father pushed her.
On 18 December 2014 a provisional Apprehended Violence Order (“AVO”) is taken out naming the maternal grandmother as the protected person and the father named as the defendant.
The mother ceases to have counselling with Ms BB of the BK Organisation in December 2014.
On 11 February 2015 ROSH Report 5 is received by the Department reporting the child was left unattended in the Suburb C residence by the maternal grandmother. The father had entered the home and, upon finding the child alone, attended the police station with the child. The child was returned to the mother’s care.
On 19 February 2014 a joint decision is made between AA Group and the Department that AA Group would cease working with the family and the Department would resume that role.
On 17 April 2015 the Department completed a case plan in relation to the child.
The mother first consulted Mr M, Child and Family therapist, on 24 April 2015. The mother attended Mr M on 11 occasions between 24 April 2015 and July 2015. As at the date of the hearing she has attended on Mr M on no less than 100 occasions.
On 18 May 2015 the charges of common assault and application for an AVO made in relation to the maternal grandmother against the father were dismissed in the Local Court.
On 2 June 2015 the Minister filed a Notice of Intention to Intervene in the Federal Circuit Court Proceedings.
On 2 July 2015 Ms L prepared a report outlining that the mother’s symptoms are consistent with a diagnosis of Post-Traumatic Stress Disorder (“PTSD”).
On 8 July 2015 interim orders were made by a Judge that, amongst other orders, the father commence supervised time with the child.
On 9 July 2015 the mother presented herself to V Hospital following flashback episodes.
On 25 July 2015 and 1 August 2015 the father and child spent time together, supervised by BR Contact Services.
Supervised time between the father and the child scheduled on 8 August 2015 did not occur.
15 August 2015 is the last time the father spent time with the child prior to the interviews with Dr H, which were conducted on 15 March 2016.
On 7 April 2016 O Child Care centre informed the Department of issues with the mother collecting the child after closing time.
On 1 September 2016 the mother was admitted as a voluntary inpatient at the V Hospital.
On 13 February 2017 the mother commenced to consult Professor LL, Consultant Psychiatrist. Between this date and 16 October 2017 the mother consulted with Professor LL on 41 occasions.
On 17 March 2017 ROSH Report 6 is made to the Department in relation to an incident at R Centre that indicated the mother made comments in front of the child such as “is it okay for one child to die?”
On 20 March 2017 a Non-Risk of Harm Report was made to the Department reporting that the mother attended a local community centre in a distressed state with the child.
On 6 April 2017 a SDM Safety Assessment Decision Report was prepared that identified the child as “safe”.
On 14 July 2017 a Risk Assessment SDM report was completed finding that the final family risk level is “High”.
The mother met with Department Caseworker Ms F on 9 August 2017. The child was reported to be disruptive and uses inappropriate language.
On 8 September 2017 the Minister filed an Application in a Case and interim orders were made by a Judge providing the Department with sole parental responsibility. The child was placed in the care of the father and Ms S immediately and the mother was offered supervised time with the child.
On 13 September 2017 the mother had her first supervised visit with the child.
On 28 September 2017 the mother attended a Case Plan meeting with Professor LL, Ms KK, the maternal grandmother along with Department caseworkers Ms F and Ms N.
The final hearing commenced 23 October 2017.
8 November 2017 was the mother’s last contact visit with the child.
The child commenced at BC School in Suburb BG in 2018.
On 27 June 2018 Orders and Reasons for Judgment were handed down by Justice Cleary.
The mother filed an appeal against the Final Orders on 24 September 2018. The Full Court upheld the mother’s appeal on 15 February 2019 and the matter was remitted for re-hearing.
In late 2018 BD Tarelli, the father and Ms S’s child, is born.
On 24 June 2019 a risk assessment by the Department in relation to the child’s placement with the father and Ms S was undertaken. The risk was assessed as “low”.
On 11 October 2019 the Applicant was charged with 20 offences.
The father pleaded guilty to three counts of common assault and the remaining charges were withdrawn on 11 June 2020.
On 29 July 2020 the father’s three common assault charges were listed for sentencing at the Local Court in Sydney. The sentencing was adjourned to August 2020.
On 3 August 2020 the Single Expert Report of Professor TT was released.
Final hearing before Justice Henderson commenced the 4, 5, 6, 7, 10, 11, 13 and 14 August 2020.
In August 2020 the father was sentenced at the Local Court in Sydney in relation to the three common assault charges. The father was sentenced to an Intensive Correction Order with a term of 18 months.
The mother filed an application in the Supreme Court on 8 January 2020 seeking damages against the father in relation to these offences.
Overview
Pursuant to the orders of Justice Foster of 8 September 2017, the Department currently has sole parental responsibility for the child. Immediately upon that order being made and without warning to the mother or preparing the child, the Department placed the child in the father’s care. A significant concern arose during the trial, from the evidence of both the father and his partner, Ms S. Each gave evidence that they had been, and still were, struggling to talk to D about why it was he did not see his mother and grandmother, and why they did not see him.
The Department has not assisted the father or Ms S with this issue despite a case worker visiting the family weekly at times and reporting back that this was an ongoing issue.
Despite these recommendations and pleas for help, no person in the Department who had control of this matter, including Ms N, the senior officer in charge, took these recommendations further and provided that very necessary assistance to the father and Ms S and to the child. One wonders what the purpose is, at significant cost to the state, of having a case worker visit a family once a month, file a report and make recommendations if they are not acted upon. The father’s and the Department’s conduct looms large in this matter.
The father has continued to deny at every opportunity that he has denigrated, spoken poorly of, victimised the mother, physically abused her, emotionally abused her, financially abused her, coerced or controlled her. This has been the father’s consistent story to both the Department and their officers, before Justice Cleary, and repeated before me. The significant difference at the hearing before me of his evidence of blamelessness and denial of any poor treatment of or behaviour towards the mother was that it was unbelievable in circumstances where he has pleaded guilty to three serious offences of assault against the mother as follows.
The agreed facts of his sentence signed by him on 11 June 2020 refer to him admitting to ramming her with a car, throwing a mattress at her whilst in a bedroom with D present, attempting to strangle her and ramming her head against a pantry door. Importantly, the agreed facts state these were not the only incidences of violence and poor behaviour during the relationship. Even in the face of having pleaded guilty and agreeing to these most concerning behaviours, the father still accepted no responsibility for his behaviour or accepted that he had acted in a way that would have caused the mother extreme concern for her safety and that of D and denied the incidents.
The evidence is clear that both parents at times acted poorly in front of their son, however the mother’s behaviour, which was at times uncontained and concerning, was not criminal as was the father’s behaviour.
The Evidence
The Father’s evidence
Going now to the specific evidence of the father. The father confirmed that he told the truth in his Affidavit as far as he understood it. Although the father’s evidence was given through an interpreter, and I am cognisant of the issues that can cause in a hearing, he has lived in this country for some time and his English is reasonable. Further, this was his Affidavit, and to make a statement that he told the truth as far as he understood it made no sense to me. This was the evidence he put before the Court. He confirmed he always tells the truth. That, itself, was a lie.
There was an issue about his evidence of being attacked by the mother just prior to separation with a knife or two knives. He made a complaint to the police that, just prior to physical separation in February 2014, the mother attacked him with two knives. He also told the police it was a bread knife. When pressed on the fact he was lying about this incident he said, “The lie was about the fact that [Ms Langley] attacked me with a bread knife, it was not a bread knife, it was a different long-blade knife.” Yet, the police report refers to two knives, and that he was threatened by two knives held by the mother.
He said the reason he did not pursue the matter of the knives further was that he did not want the mother to go to jail. The alternate view is this event simply did not happen. The mother agreed in her evidence that she was holding a knife. She was cutting up fruit for lunch, when they had an argument. She agreed she may have waved the knife around, gesticulating, but she never threatened him as he alleged and she was firm under cross examination on this point.
As the evidence unfolded, it became clear that the mother was an accurate historian, and did her best to accurately recount facts and matters even when they were not in her interest to recall. This was in stark contrast to the father’s blanket denial, hopeless affect and demeanour, portraying himself as a victim, resulting in my finding that where there is a contest it is the mother’s evidence I prefer.
The only part of the father’s evidence that I accept is that he has not behaved with his current partner, Ms S, as he did with the mother. I accept this as I found that Ms S was a witness of truth, and is not a person, I assessed, who would put up with the appalling behaviour the father perpetrated on the mother during their relationship.
The father attempted to obfuscate and used his difficulties with English language to avoid answering difficult questions, particularly when he was being pressed on having given false statements to authorities in the past. He swore an Affidavit on Sunday 2 August 2020, was giving evidence on Tuesday 4 August 2020, and yet asserted he could not remember what he had put in his Affidavit of 2 August 2020.
He said in his Affidavit of 2 August 2020 that he did not give full statements to the Local Court because he did not want the mother to go jail. He argued he did not know which Court we were talking about: “Is it the Family Court or the police court? So many courts, so many matters” effecting that he was confused. I reject that evidence. This man has had to live with this matter since separation in 2014, as has the mother and D. He has been legally represented throughout the proceedings. He full well knows the difference between the Family Court proceedings and the Local Court proceedings.
His evidence was that “The only false statement I ever made in this case was to assist [Ms Langley],” because he did not want her to go to jail. This not wanting her to go to jail may be correct, because the mother’s evidence was also consistent on this point and she asserted that she did not pursue matters at times, because she too did not want the father to go to jail. This is perhaps an understandable attitude as these events occurred at the time of physical separation in or around February to March 2014 and in circumstances where they had been in a tumultuous, poisonous, unsafe relationship for each of them and their son D, and each were struggling with the consequences of that unsafe relationship and its breakdown.
The father asserted that he and the mother lived together well before September or October 2012. That is simply incorrect. It is the mother’s evidence that, almost immediately upon commencing a relationship, she fell pregnant. She became very unwell with morning sickness, and went to live with her mother at Suburb BL. The husband lived in her property at Suburb CC and carried out some renovations to the property. The parties did not commence living together until she returned to Suburb CC in about September 2012, after that first trimester of morning sickness began to decrease.
The father asserted they lived together from March or April 2012. I reject that evidence. They had a relationship and a sexual relationship. The parties met on 28 April 2012. They could not have been living together in March 2012. It is clear that the father has put varying dates in his previously filed material of the date of them commencing to live together including a date of February 2012, an impossibility.
The father reiterated that he commenced living in the Suburb CC property much earlier than June 2012, because it happened after he attended a friend’s Indian wedding party, however he could not tell the Court when that was. The father may have commenced living at the Suburb CC unit but they did not live at that property together until, as the mother says, from about September or October 2012.
The Father’s Treatment of the Mother
The father was cross-examined extensively on the mother’s allegations of his unacceptable treatment of her. He was asked, “…[Ms Langley] was saying to you that you had physically assaulted her.” The father’s answer was, “I didn’t hurt her.” Yet he has pleaded guilty to three charges of assault, including strangulation and banging her head against a pantry door. I am not sure what the husband believes is physically hurting someone, but those actions clearly fall into the category.
He was asked, “Do you say you have never physically assaulted [Ms Langley]?” His answer was “I do not understand the context.” There is no context.
Question: “It is a yes or no”.
Mr Schonell SC asked the father whether he had been violent towards the mother, the common answer being, “I protect myself”.
He agreed they argued about things. He would not admit he had hurt her, “I didn’t do any scratch to her”. He denied trying to strangle her. It was put to him, was he aware that she alleged he had sexually assaulted her prior to separation in January 2014? His answer was, “Yes, this is what she kept on saying”. He denied sexually assaulting her and said “I didn’t do it”. He alleged the mother blackmailed him, and he knew that the mother had made these allegations because he told the police in February 2014 that Ms Langley was alleging he had sexually assaulted her.
He was asked:
You were asked questions by Mr Priestley [in the hearing before Cleary J]?
Answer: Yes.
Question: …You denied… that you had ever physically assaulted [her]?
Answer: Yes…that was true.
His answer to that question may have been that is what he told Mr Priestley however it is not true that he has never physically assaulted her when clearly he has. The father maintained the fiction that, “I wasn’t violent” to Ms BT in the Child Dispute Conference Memorandum dated 19 March 2015, mother’s exhibit 5, in the proceedings.
The father was interviewed by Ms HH and Ms N on 18 March 2015, found at mother’s exhibit 6, about his treatment of the mother.
At page 114 of the Independent Children’s Lawyer’s tender bundle is an interview with the police about the sexual assaults, and assaults generally, after the mother’s allegations of his treatment of her during the relationship. At both interviews he repeats, “I am not violent”.
The evidence is that the father entered the home after he had physically separated from the mother on multiple occasions, showing no respect for the mother, the child or the maternal grandmother. On one occasion, in December 2014, [1] he entered the home when the maternal grandmother was there, and ripped a television out of the wall, taking it with him. This is at a time when his son was at the home being cared for by the maternal grandmother, and his conduct and behaviour on that occasion is intimidating, coercive and controlling, and bespeaks of and is consistent with the behaviour the mother says he meted out to her during the relationship.
[1] Affidavit of Ms OO filed 20 July 2020 paragraph 67.
The maternal grandmother was a witness of truth, and I accept entirely her evidence of his behaviour on that occasion and other occasions. His evidence that he “never hit a woman in [his] life” only confirmed that he has no inkling of what violence towards women is. Strangulation is as good as hitting, and he has pleaded guilty to that charge.
The father stood firm that he is not violent or aggressive. When it was put to him that he had been violent towards the mother, he said it was to protect himself. When it was put to the father that he pushed the maternal grandmother he said, “I can’t remember.” However, he had responded to this allegation of pushing the maternal grandmother in his Affidavit sworn 2 August 2020 and I do not accept that the father could not remember. He knew precisely what had happened. He speaks of this incident at paragraph 39 of his affidavit of 31 July 2020, where he says:
…I am at a loss to understand why [Ms OO] has referred to this matter as if I had actually assaulted her and had behaved in a way that entitled her to the protection of an Apprehended Violence Order. [Ms OO] conveniently omits the outcome of these complaints. In case she has forgotten what occurred the fact of the matter is that on 18 May 2015 the Local Court Magistrate dismissed the assault charge and on the same day she dismissed [Ms OO’s] application to obtain a final Apprehended Violence Order.
The father was referred to mother’s exhibit 3, which is an interview on 14 December 2015 concerning the incident with the maternal grandmother and removing the TV and whether he pushed her. He said to the police, at page 14 of the exhibit:
…Absolutely not. Absolutely. I never touched her, never. I only touched Ms Langley when she wanted to hit me, you know, I grab her hand, that’s it. I, I never. What, it’s old woman. Small, tiny old woman. I never hit any woman in my life. I have formed the view that that is precisely what he did. He pushed the maternal grandmother around because he could. She is a small woman and he is a strong man.
At paragraph 95 of the father’s Affidavit filed 3 August 2020, the father refers to an incident in February 2015 where he went to the garage at Suburb C to pick up his tools. He was in the premises for 10 or 15 minutes, and he entered the home because he said he had a key, and found the child, D, in his bedroom alone. The grandmother had gone to work. The mother had not returned from the shops. The mother said she was sitting outside the home in her car taking a phone call from a departmental officer. This was a poor decision by the mother, not to enter her home at 2 o’clock when she knew her mother had to go to work, and this was a very poor decision by both these women to leave this child unattended at home, he then being a mere three years of age. However, the father entering the home was also an improper act by him, and supports the mother’s position of his lack of respect for her. The father took the child to the police station and ultimately the mother retrieved him from the police.
The father was asked, what sort of abusive things did he say to the mother in arguments? He said they used the word “silly”. He thinks he called her an “idiot”. Denied calling her a “bitch.” A “baby”? Could not remember. He remembered calling her “lazy”, but could not remember when. When asked whether he had said the words, “If you are a bitch, we should have more sex”, He said, “I saw that, yes.” This was in the mother’s exhibits starting at page 7, of text messages in 2012.
The text messages in 2012 were annexed to the mother’s Affidavit of 22 July 2020 and marked “R3.” The mother writes:
I want a quiet, peaceful life, not stress, dramas and fighting. I will not talk to you anymore about the things last night.
I don’t hate cooking. I hate being harassed, pestered, forced, threatened and psychologically abused. I hate you refusing to take responsibility for the cost of giving birth to our baby. I hate you fighting with me, I hate you always arguing with my decisions and not listening to me.
At this time the mother was pregnant with the child, suffering from significant morning sickness, not working and the father was renovating the Suburb CC property. The father’s response:
I told you, please plan the life not just fucking and have baby. Are u still little girl or smart woman?
How can we be happy. Me and our baby ll cry because mum don’t wanna cook and clean the undies.
Just food and clean close. Is it that hard? U know I’m not happy if my stomach empty.
(As per the original)
The father:
No food no money.
I take that comment to mean if he does not get the food he wants from her, the cooking he wants, he will not give her any money.
The mother tells him she is not well, in severe pain, is vomiting, and needs bed rest. His response, on 19 July 2012:
[You’ll] be slumdog all your life.
The mother responds:
DON’T EVER call me stupid or crazy or dumb. Don’t ever say something of mine is rubbish that my phone is rubbish or my apartment is rubbish or anything else. Don’t put me down. This is psychological ABUSE and I won’t tolerate it.
The father::
They never be slumdog same me.
This blood wasn’t born in poverty life.
(As per the original)
The mother remonstrates with him calling her a “slumdog”.
The father responds:
My culture my education and my friends, We are working hard.
We are proud people.
King is king.
The mother responds:
You are rude, abusive and obnoxious. I don’t know what you are proud of.
The father:
This blood wasn’t born in poverty life.
They never be slumdog same me.
U ll be slumdog all your life.
(As per the original)
These are consistent messages sent daily between the parties.
On 31 July 2012, the father writes:
Go to work not househunting with your mum. Try to wake up in time and work. I don’t pay anything for a lasy [sic] one.
This is a message to his pregnant partner. I accept that the mother had a difficult pregnancy and was unwell most of the time and could not have worked. This is abusive, coercive, threatening, and controlling behaviour. It demonstrates he had and has no respect for her or that she is soon to be the mother of his child.
He further says:
If u have time u can eat. But just concentrate the work. If u show me 8 hours work every day maybe I can cook u something.
(As per the original)
As far the father is concerned, the mother is lying in bed and being lazy.
The father writes to the mother on 3 August 2012:
You wanna buy house and sleep at home 24 hours and I just work and work. U telling me u education so gold but looks like on market, is negative. Wake up and start to work hard.
Cooking is more important than dishwashing.
Are you idiot again?
(As per the original)
The mother had remonstrated frequently with him about calling her an idiot. The father responded:
[You] are brainwashed.
No life experience.
And can’t clean and cook.
You can go nowhere with your high class lawer [sic] education.
The mother has made many complaints about the father’s erratic driving. On 3 August 2012 she writes:
You drive like a crazy man, and if I ask you to slow down, you just drive faster.
He responds:
Your speed is shit no medal on the olimpic game u are too slow.
U waste lots of money because u are not confident. Why u [study] so much? Looks like this Australian educatiob system is bulshit.
You are a sick aussi u lost your creation heritage. Are u happy with thus.
Why you speak Country BE this is not your culture.
(As per the original)
On 5 August 2012 the father writes:
I’ll tell your mother you are a lazy sick girl.
Im a single warrior.
On 4 August 2012:
I’ll finish my job in [Suburb BU] and afternoon ull come here and help me clean. See u later.
(As per the original)
The mother says, “I can’t. I’m not well enough”. He calls her, “just a sick mother,” “just so lazy,” and tells her to “wake up and start to work.”
On 5 August 2012 the father says:
Next time at least bring some food lazy.
The mother, quite properly, complains about their poor communication and his treatment of her and on 5 August 2012 he responds:
The country fucked
itll collaps [sic] soon
people [will] cry
Country BF is my life and no one [will] change it.
The father calls her a “piece of shit” on 26 September 2012. The mother is about six months pregnant.
On 19 October 2012 he writes:
I’ll blow up no worries.
That caused the mother extreme concern.
On 19 October 2012 he writes:
Ill put my screws on the road.
The mother complains the father needs to treat her with greater respect and cease calling her names and treating her in this fashion.
The father says on 1 December 2012:
This is why I drinking and will hit u [sic]. I’m sure.
The mother is about nine months pregnant, just about to give birth. Even when cross examined on these comments the father said he has “never been violent.”
On 23 December 2012 the father says:
U always spend my money u are a real parasitic.
(As per the original)
These text messages indicate their relationship was doomed from the commencement.
The father was cross-examined about his disgraceful words. All he would admit to was: “Maybe I hurt her feelings.”
He would not agree he was verbally abusive to the mother. He could be in no doubt how much he hurt her feelings from reading the text messages attached to the mother’s Affidavit at “[R]3” of their communication in 2012. These messages set out clearly the dynamic of their relationship and it was toxic and ultimately unsafe for them and their child.
The father would not admit it was rude to describe someone as a “bitch” responding, “It’s a response to an argument”.
He denied calling her an idiot at any time, yet he did. He said, “I was questioning her. ‘Are you being an idiot again?” He called her an idiot, a bitch, a slut, lazy and parasite. He told her he would get drunk and hit her and that if she did not cook for him, if she did not provide food for him, there would be no money. That all she needed to do was cook and clean emphasising with the words, “Is it that hard?”
The father argued that what the mother had provided, from page 7 to page 18 of her exhibit bundle, was not a full text of question/comment and response when it clearly was, and I reject his claim.
He would not accept he called her an “idiot”, and said it was a question adding “…I confuse something...I didn’t understand, my experience was different.” I reject that answer.
He disrespected, demeaned and abused the mother as a person and a mother, and her education. Yet she is clearly intelligent and was very capable at that time. He disrespected her Country BE heritage, asking why she would even bother to speak the language of Country BE and that it is not her heritage when it clearly is, and it is his son’s heritage. He disparaged the country where he was working and earning money, Australia. He said this country would fall apart soon. He disparaged her own mother supporting them. He did not believe her when she was unable to assist him in renovations and the like because she was unwell when pregnant with their child.
He had demonstrated little understanding of the needs of the mother when the baby was born and, rather than supporting her, drew to her attention that his needs, not hers or the child’s needs, were paramount and should be paramount for her. That is the clear flavour of the text messages from the father. They are threatening, coercive, controlling, abusive, and designed to show disrespect to this mother and exert his power and his paramountcy over the mother and the child. He admitted he knew she was unwell and yet he still maintained that she was lazy in not working.
He said his complaint about cooking was because the mother wanted to eat in a restaurant every day. That does not come through from those text messages and I reject that evidence. The messages are clear: he expected her to come over to the Suburb CC property every day and cook food for him while he was working.
He was asked: “You have also called her a “fucking lazy bitch?”
He said he could not remember. He did not need to remember. It was in the mother’s exhibits to her Affidavit of 22 July 2020 at pages 7 to 18. The mother had messaged him that she missed him and he responded by calling her a “fucking lazy bitch.” The father argued that the mother put those words in his mouth to make out a case against him. In 2012, the mother was not making a case against him. These are the actual text messages from 2012, not a recollection of them. The mother was, in 2012, wanting this relationship to work. They were having a baby and she wanted her child to be born into a family environment.
The father’s belief that in some way in 2012 the mother was manipulating him and putting words in his mouth is not accepted by me and the evidence is to the contrary. The mother was pleading with him to begin to treat her with some degree of courtesy and respect to which she was entitled as a mother of his son.
The father responded to the question:
You regularly referred to her as lazy, fucking lazy, an idiot, stupid, a bitch
with the words:
That…was just when she forced me something and I couldn’t cope with that.
The father has a temper, as does Ms Langley, as later evidence revealed. They each agreed there was a plate throwing incident when D was under 12 months of age and the mother ultimately admitted she threw plates and smashed them and that they both threw things.
To excuse his threats to hit her and calling her a parasite, the father said he did not understand “this English”. I reject that evidence. His English was clear to me under the pressure of cross examination and the father is well able to make his position clear.
The mother sent him a text message on 6 November 2012 at 12.28pm:
[Mr Tarelli], you need to treat me with greater respect.
He was asked whether this was an unreasonable thing for her to ask and his answer was:
I think it was.
The mother further says in the message:
We need to be equals in this relationship or it just will not work. We might buy [Suburb C] and move into it but it will not be long before we go our separate ways. You cannot call me names and you cannot kick me off the toilet.
When asked if this was the mother complaining about the way he treated her and spoke to her he said: “This is how she feels everything.”
Question:
…She was responding to the way you spoke to her?
Answer:
No. She didn’t understand me.
I find the mother understood him all too well and did not like the way he behaved with her, which is very different to his behaviour with Ms S.
He was questioned why he called the mother “low class.” His explanation was “I think this was answer of the constant shopping behaviour”. He was pressed on this and said “I didn’t understand why [it was] necessary to buying so many things we not even using”.
I asked him:
How is that an answer to calling her low class because she buys things at the shops you don’t need?
His answer was:
She always told me she’s high class. And that was the response to low class. That was it.
To this day, I do not understand buying items you do not need as being an example of being “low class” nor do I understand what “low class” means. The husband said “buying luxury items”. This was not what he said in his messages.
Then the husband said:
I don’t understand the word low class.
Yet they were his words and similarly he has said the same thing about words in his own Affidavit.
The father said:
I using many English word what I don’t really know their Country BF meaning.
He used the word “…” which is a disparaging term. However I accept his evidence that he may not have been calling the mother a prostitute per se as this is a vernacular term with many nuanced meanings, but it was a disparaging term. It was the activity, he said, of being “slow”, not of the woman, but of the behaviour. I accept this explanation. However, it was still a disparaging comment to make to her.
He was asked:
Do you have a problem controlling your temper?
[THE FATHER]: Not with normal people, no.
I take from this answer two things; the mother was not normal in his eyes and that he lost his temper with her.
In further explanation he said:
If someone is abusive, I am just protecting myself…mostly I have to protect myself.
He was asked:
So you would become verbally abusive?
[THE FATHER]: I say a couple of not nice word.
Question:
You physically pushed her?
[THE FATHER]: I can’t remember.
I reject that answer. He knows perfectly well he pushed her. The mother riled him up no end and he riled her up no end.
He did not admit to raping her or strangling her, or ramming her head into a pantry door, despite the fact of pleading guilty to the attempted strangulation charge. He was asked:
Didn’t you plead guilty to strangling her?
[THE FATHER]: What does it mean? Because I don’t understand.
I reject that answer. He knew precisely that he had pleaded guilty to a charge of attempted strangulation, knowing he was to be sentenced on this and two other charges the following day and after his cross examination. His sentencing took place in the middle of the hearing.
He was represented by lawyers and he had referred to this incident in his Affidavit. He signed a statement of agreed facts on 11 June 2020 agreeing he had attempted to strangle the mother amongst other assaults. I have formed the view that had the maternal grandmother not been at the home and intervened he may have killed the mother at that time.
In his interview with police on 3 May 2019, he denied all allegations of physical assault, sexual assault or any physical damage or harm to the mother and he said:
As far as I remember, I say it didn’t happen.
He was asked whether he had given truthful answers to the questions about sexual and physical assault against the mother. The father denied he was a liar, yet he is a liar and even after pleading guilty to serious charges of physically assaulting the mother he persisted with this lie of never hurting the mother.
The strangulation incident is recorded in an interview on 3 May 2019 and is mother’s exhibit 7 and the father was questioned on this.
On about 13 November 2013, the mother says the father had been out in the city drinking and he rang her and asked her to come and pick him up. The mother said she could not because she was sick and the child was sick and her mother was at her home helping her to care for the child.
The father was asked:
…“the allegation is that you did. You approached [Ms Langley] in the house and…this was near the pantry and the kitchen…the allegation is that you started strangling her with your hands around her neck. Did this happen?” And you answered, “No.”
[SENIOR COUNSEL FOR THE MOTHER]: But was that a truthful answer?
[THE FATHER]: Yes.
[SENIOR COUNSEL FOR THE MOTHER]:...And a bit further on…in relation to asking about where a laptop was: “do you remember having a laptop?” And you answered, ‘I did have a laptop.” Do you remember saying that?
[THE FATHER]: Yes.
[SENIOR COUNSEL FOR THE MOTHER]: And the next question goes “well, at this stage, [Ms Langley’s] mother heard some screaming and she came into the kitchen and then at that stage she has seen you ram [Ms Langley’s] head into a pantry door.” Do you remember being asked that question?
[THE FATHER]: I can see, yes.
[MR SCHONELL SC]: Then go to page 14 [of mother’s exhibit 7]. And the question is put: “[Ms Langley’s] head was rammed into the pantry door. Do you remember this happening?” And you answered, “No”…was that a truthful answer?
[THE FATHER]: Yes.
[SENIOR COUNSEL FOR THE MOTHER]: …And at page 15 [of mother’s exhibit 7] you’re asked… “[So] you disagree or you disagree with the assault with you ramming her head into the door?” And you answered, “I didn’t. I deny. I did not do that.”
…
[SENIOR COUNSEL FOR THE MOTHER]: And you have pleaded guilty to this assault?
…
[THE FATHER]: That was different. The police document was different.
[SENIOR COUNSEL FOR THE MOTHER]: In what way was the police document different?
[THE FATHER]: The charge.
[SENIOR COUNSEL FOR THE MOTHER]: In what way was the police document different?
[THE FATHER]: It wasn’t my word.
[SENIOR COUNSEL FOR THE MOTHER]: In what way was it different?
[THE FATHER]: It was her word…
The father was asked:
And you’ve pleaded guilty to those facts, haven’t you?
Which facts are at page 224 of the mother’s tender bundle.
The father said:
That was negotiation between me and the police and I didn’t have – I had no other choices financially.
[SENIOR COUNSEL FOR THE MOTHER]: You don’t take any responsibility for hurting my client, do you?
[THE FATHER]: I didn’t hurt her.
The relevant documents for his sentencing are the statement of agreed facts at page 224 of the mother’s tender bundle, a sentencing assessment report (ICL’s exhibit 3), and the sentence that the father received in August 2020 (Intervener’s exhibit 1). Additionally, the mother and grandmother made victim impact statements and I read and heard the remarks on sentence of the sentencing handed down by the Magistrate who was most critical of the father’s conduct.
The agreed facts signed by the father on 11 June 2020 read as follows.
It begins with details of the offender, when he was born, and that they met online in April 2012. This is inconsistent with his evidence of when they met.
It outlines that they met in person in about May 2012, and the mother fell pregnant. The pregnancy was difficult, and the victim moved into her mother’s home at Suburb BL, NSW. They continued their relationship. During this time, the offender and the victim’s relationship was strained, and there was verbal abuse. The offender was aggressive and controlling towards the victim during the term of their relationship.
Relevantly at paragraph 3:
From approximately June 2012, the offender moved into the victim’s apartment at Suburb CC while she remained in Suburb BL with her mother until about October 2012.
4. The facts below describe three particular incidents. However, this conduct by the offender was not isolated in nature.
5. [Relating to charge 2 – Common Assault] At about 1.15am on 12 November 2013, the victim was at home in Suburb C with D and her mother. D was sick. The offender came home intoxicated and began to argue with the victim. The victim was attending to D and trying to settle him as he was crying.
6. The victim’s mother took D, who was 9 months old at the time, into his bedroom to settle him. The victim was standing near the pantry and the offender started strangling her with both hands and yelling, asking where his laptop was.
This was an issue that the father raised in his evidence: that the mother was always hiding his laptop, and the mother said he spent more time on his laptop than interacting with the family.
Paragraph 6 continues:
The victim found it difficult to breathe and was focused on removing the offender’s hands from around her neck.
7. The victim’s mother returned to the kitchen and stood about 1 metre away, holding D. The offender rammed the victim’s head against the pantry door and she felt pain as a result. The back of the victim’s head hit the pantry door as the offender was standing in front of her. The victim’s mother yelled words to the effect of “let her go. What do you think you’re doing?” The offender turned around and let go.
8. The victim called police because she was scared of the offender and they arrived a short time later. The victim did not disclose the details of the incident outlined in [6] to the police because the offender was still there and she was afraid of what the offender would do after the police left. The victim declined to provide a statement to police.
9. After the police left, the offender continued to yell at the victim. This continued until about 3am. The victim’s mother stayed the night and eventually got into bed with the victim to protect her.
At paragraph 10, relating to the second offence of common assault – charge 18:
At about 8 pm on 3 March 2014, the victim asked the offender to leave the Suburb C house. The victim was in her bedroom with D, who was 1 year old at the time. The offender came to the room and said he wanted to sleep with them on the bed. The victim refused, and the offender became agitated.
This was at a time when the family had returned from Country BE and Country BF, for the second visit, and after the mother alleged that the father had sexually assaulted her on four occasions in January 2014.
Paragraph 11:
The offender picked up and threw the mattress and it hit the victim, causing her to fall over. The victim was concerned for D’s safety, who was in the bedroom at the time, and ran toward him. The victim threatened to call the police. The offender grabbed and twisted the victim’s left wrist, causing her pain. The offender then left.
Grabbing and twisting the mother’s hands is a common theme in the mother’s material.
At paragraph 12:
A few minutes later, the victim was standing at the front door when she heard a bang and the front door flung open, almost hitting the victim and D.
This would be the second or third occasion the father has kicked the door of the home in order to attain access to the residence. Paragraph 12 continues:
The offender had kicked the door, breaking the security chain. The offender came into the house and pushed the victim against the wall. He started to argue with the victim and was extremely angry.
Paragraph 13, relating to the third offence of common assault – charge 23:
As at 30 March 2014, the offender was no longer living at the Suburb C house as he was asked to leave.
14. About 7.30 pm on 30 March 2014, the victim was home in Suburb C. The front door was locked. The offender gained access to the house and removed some legal documents from the dining room table before leaving. The victim called the offender and asked him to return the documents. The victim called the police.
The father just entered the premises when it suited him, without warning or notice to the wife, and he did this on at least five occasions post-separation.
At paragraph 15:
Shortly after, the offender returned and the victim went outside. The victim spoke to the offender through the passenger window of his van. The two had a verbal argument and the victim stood in front of the van. The offender drove forwards in the direction of the victim. The victim was pushed up against the bonnet and was trying to move backwards so as not to fall over. The victim grabbed hold of the window wipers and yelled out to stop on a number of occasions. The victim was scared that if she let go of the wipers she would fall under the car and get run over. The offender started driving forward faster. The victim managed to pull one of the windscreen wipers off and hit the windscreen with it a couple of times. The victim was yelling at the offender to stop the van.
16. Throughout the entire incident, the victim was very scared and feared for her life. The victim spoke to police however, as she was so terrified of him she did not tell them what had just happened.
17. On 11 October 2017, the victim attended Suburb AN Police Station and reported the incidents.
On 3 May 2019, the offender attended Suburb AP Police Station. An E.R.I.S.P interview was conducted. His signed statement of agreed facts is inconsistent with his position throughout these proceedings to the Department of Communities and Justice, to Professor TT, before Justice Foster, Justice Cleary, and myself, namely, “I have never hurt the mother.”
These are the offences to which he has pleaded guilty and are consistent with other incidents the mother raises in her evidence, yet he denies hurting the mother.
When it was put to the father that his son was home when he tried to strangle the mother and he would have heard the commotion he said:
D was a heavy sleeper. He never wake up, and I was very careful of that… not argue in front of my boy.
This is the same evidence he gave of the frightening incident the mother describes driving through the mountains of Country BE in the rain on a cold, winter’s night with the father driving faster and faster when she believed he was trying to kill her and the child by hitting a tree.
The father’s answer at that time about the child witnessing this frightening behaviour was:
D is a heavy sleeper. He would never wake up.
I reject that evidence entirely. His grandmother had him in her arms when she called out to him to stop. He saw the event.
The grabbing of her wrists and pushing them back causing her pain is a consistent event in the mother’s evidence. On 11 October 2012 the mother says, at paragraph 120 of her Affidavit of 22 July 2020, that they were at the Suburb CC property, she was not feeling well and was pregnant with their child. The father wanted her to cook food. The mother says they had an argument about her not wanting to cook. He grabbed both her arms and wrists and forced her to make some food. The father denied he behaved in this manner. He disagreed that he did this. However, it is clear the mother did ask him to leave the home, he refers to it in his material, and he agreed she asked him to leave the home. He says:
She told me I have to leave…the flat. That’s why she call the police.
It is clear she called the police because he had physically assaulted her. The father’s explanation was this:
No. Can I tell my truth, how I know? She called because we went home, and I didn’t pay dinner in that time, and she was so upset why I’m not paying her, and …we start to argue. She called the police, and I just went…to [her] mother house in [Suburb BL], but the whole [incident] about paying food…was so strange for me.
This frequent complaint in the material is supported by the father’s own evidence as he says he protected himself when she was trying to hit him or hurt him by grabbing her arm or hand. I find that that is precisely how he dealt with the mother during the relationship. When he became angry and agitated, he grabbed her hand, twisted her wrists and hurt her. I find that the father on that occasion, as he did throughout the relationship, grabbed her by the hands and arms and twisted her hands and wrists, hurting the mother.
There was a nasty incident on 28 June 2013 when the parties fought over the computer, which the mother and child were using at the time to watch a cartoon, and it flung out of their hands and smashed. The mother left with the child and went to her mother’s home on that occasion. This too was a common occurrence during the relationship.
Mr Schonell SC questioned the father on paragraphs 152 to 159 of the mother’s Affidavit of 22 July 2020 where she referred to various incidents of abuse and poor treatment of her by him occurring in Country BF as well as in Australia, and the father denied any such incidents.
The father was referred to the mother’s exhibits to her Affidavit of 22 July 2020, at page 19, which is a text message from the mother to the father. He agreed it was a message she had sent to him, in about September or October 2013. The message is replete with complaints of his aggressive behaviour towards her:
Your behaviour has been aggressive and abusive and this is unacceptable. I am considering placing a complaint with the Police. You destroyed our son’s Christening candle, you man handled me by tightly and painfully gripping my upper left arm at your parents house in Country BF when some steam came out of the iron I was ironing with, leaving a red imprint of your hand. You refused to prepare food for D in Country BE when I was unable to after having a shower and collapsing on the bed due to exhaustion with my pregnancy. You refused to place the book you were reading down and feed our D who was screaming. When I attempted to remove the book from your hands you twisted my arms and pull my fingers backwards which was very painful. I was in fear that you were going to break my fingers.
It is clear the mother and child were unwell on this first trip to Country BF. They had a flu and fever. The message from the mother to the father continues:
The following night I was drinking from a bottle of water in bed. You asked me for the water and I said no as I was drinking. You forced the bottle out of my mouth and in doing so cut the inside of my mouth with the bottles opening which I was drinking from. You then emptied the whole bottle of water over the bed and I was required to sleep in a wet bed with wet sheets all night whilst I was 2 months pregnant.
The mother writes:
[Mr Tarelli], our relationship is very fast going south. I will not accept this behaviour from you. This behaviour is criminal. I ask you to reconsider your behaviour.
My ultimate concern is the care of our child and our child not having to continue witnessing violence perpetrated by you on me, and this behaviour has been at a time when I have been very vulnerable as I am unwell with the pregnancy.
When it was put to the father that this message was the mother complaining to the father about his behaviour and violence in 2013, the father said “I wasn’t violent.”
The father was then questioned about the mother’s allegations of his sexual abuse of her which commences at paragraph 182 of her Affidavit of 22 July 2020.
On 8 January 2014 the mother says the father put his hands on her backside. She said “leave me alone.” He put his hands in her underwear and penetrated her with his fingers. She said that he climbed on top of her in bed, tried to kiss her and she stopped him by turning her face away. That he tried to force her. He put his hand inside her underwear and penetrated her with his fingers. That he tried to pull her underwear back and said to her “this is my birthday present.” He pulled her underwear down and put his penis between her legs and tried to penetrate her.
Both Professor TT and Mr M posited a lengthy and slow return to her care and there is much force in these expert opinions.
Professor LL agreed with the mother’s position of a quicker return. I will follow Professor LL’s opinion for the following.
The mother’s analogy of “it’s like jumping into a swimming pool, you just jump” resonates with the decision I am tasked to make.
It is an imperative that the mother is in the best possible mental health position she can achieve currently when D comes into her care. A slow arrangement will only exacerbate her PTSD symptoms and thus minimise her availability to, and capacity to, parent D.
A quick transition, although perhaps not the best option for D in the short term, is ultimately the best option as it will maximise, not diminish, the mother’s capacity to provide for his needs as that will be her priority in the near future and for some time.
Thus I will make the orders as proposed by the mother. This is the best and only chance for D to have both parents in his life. The alternative of remaining in the primary care of his father will ensure he never has a relationship with his mother or his maternal grandmother and, as Mr M said, that would be the most significant loss for D despite the negative impact upon him, in the short term at least, in having determined he is to be returned to his mother’s care.
The Father’s Evidence in relation to Property
In relation to the renovation of the Suburb CC property, it matters not that the mother did not want the father to renovate the property as I accept he did renovate the kitchen and do work on her unit. He put in a new kitchen. He replaced a wash basin and vanity, and replaced skirting boards. The maternal grandmother said he did this work, the mother said he did this work and I accept he carried out those renovations while living in that property rent-free. He lived in the Suburb CC property until 3 December 2012, when the parties purchased the Suburb C property. The father would not admit that, when they purchased Suburb C for some $750,000, that it was funded by a mortgage taken out in his name, and the rest of the money was provided by the mother or her mother. His answer was, “As far as I know, the rest of the money were the proceeds of the sale of [Ms Langley’s] unit.”
I find that the father put no money into the purchase of Suburb C. He was asked: “…other than the money provided by the bank, you didn’t contribute any money to the purchase of the Suburb C property?” His answer, “Indirectly, I did.” I accept he did make a small, indirect contribution to the purchase of the Suburb C property by his renovations of the Suburb CC unit. However, what that answer also tells me is that he knew what he was being asked in terms of family law and contribution. His answer was of someone who knows what the Family Law Act requires in terms of a contribution-based entitlement and is inconsistent with his alleged bewilderment and lack of understanding. This evidence came out under skilful cross examination by Mr Schonell SC.
A sum of $460,000 was borrowed from the Commonwealth Bank to assist in the purchase of the Suburb C property at $750,000. The balance of the purchase price of the property of $290,000 together with stamp duty, conveyancing fees, and the like were funded by the mother, either directly from the sale of her unit at Suburb CC, and/or indirectly by gifts, loans and the like from her mother.
The contribution-based entitlement of the husband to the Suburb CC property is the renovations he carried out at that property. I accept the father did work on that property, but I also accept that the wife paid for the renovations. I accept the mother’s evidence supported by her mother that she paid for the IKEA kitchen. I accept that the father used other tradesmen and friends to assist him and that, in relation to the bathroom, he likely paid for the vanity, shaving cabinet, and for tradesmen to do the plumbing and necessary electrical work required for the kitchen and the bathroom. However given he paid no rent or mortgage payments, or other outgoings on the home and that the mother paid for the lion’s share of the items he used in the renovations, I have assessed his contribution-based entitlement to the net proceeds of sale of the Suburb CC property, a property the wife had purchased in her own name in 2004, to be of no consequence.
The husband lived in the Suburb C property until separation, which I find was around March 2014, consistent with the mother’s evidence and not consistent with his evidence. I find the husband had an ulterior motive for this disingenuous evidence that they were still living together in April 2014 in that he did, on no less than five occasions, enter the property post March 2014 without advising the mother, when the mother was not there, or when she was there, or the grandmother was there.
It is clear that, whilst the parties were living at the Suburb C property, the husband did, if not pay all of the mortgage, certainly assisted in paying the mortgage, assisted in paying rates and taxes on the property and maintaining the property physically. The mother agreed that he had removed a roof on the garage and replaced it; that they had put together various items of furniture in the home; that they each together did the garden in the home; and were, whilst living in that Suburb C property, caring for that property both financially and physically to the best of their ability. I also accept that when the husband actually moved out in March 2014, he paid the mortgage for about a year after moving out, and that is a contribution not only to the asset but also to the family, as the mother and child were living in the Suburb C property.
I also accept the husband’s position that he has continued to pay the rates, both council and water rates, on the property since leaving the property, which amounts to some $3,000 per annum over a period of six years, which is some $18,000 for a property he did not live in. That is a contribution to not only the property but also to the welfare of his child whilst the child lived with the mother up to September 2017.
Judge Harman made an order on 8 July 2015 that the mother was to have sole occupation of the property, she was to pay the mortgage, the result being that, as the property was in the father’s sole name, he would continue to pay rates and taxes. He has honoured that obligation and the mother, with the assistance of her own wonderful mother, has also honoured her obligation to maintain the mortgage on the property, although I accept at times the mortgage has gone into arrears.
The father received a redundancy in 2014 of some $45,000 and none of that money was paid to the mother to assist her to pay the mortgage on the property, or support for the child. The father used that money to the exclusion of the mother and this was money to which she had made a contribution as it had been accrued whilst the parties were in a relationship.
The father’s legal fees have totalled $65,000. The mother’s legal fees are well in excess of $300,000.
The father was sending significant sums of money to Country BF during the relationship: $6,500 on 16 February 2012; $5,650 on 8 March 2012; $7,000 on 12 April 2012 and $9,700 in November 2012. Then the father received the first home owner’s grant on 17 December 2012 of some $7,000 and it was put to him that almost all of that money went to Country BF. The evidence established that this is correct. He sent $2,000 to Country BF in August 2013, $5,500 in February 2014, $400 in April 2014 and $2,400 in November 2014. The father said he did this to have money in Country BF when the parties had holidays. The father went to Country BF frequently. The mother, the child and the father went twice during the relationship. The father went on many more occasions.
The father sent $6,500 to Country BF on 8 January 2013, some three weeks after receiving the first home owner’s grant of $7,000, and then between August 2013 and November 2014 sent a further $10,300 to Country BF. That is a total of $16,800 sent to Country BF between 8 January 2013 and November 2014. I accept the mother’s position that the first home owner’s grant was money that the husband used exclusively for his purposes, namely, travel to and from Country BF for either holidays or to support his mother, and that little of this money was used to support the family, conserve or maintain the home or support the child.
Further, I find that the father sent significant amounts of money from his wages to Country BF thereby minimising the money available to benefit the mother and child, or to maintain or conserve the property. The father primarily used money available to him as he saw fit and this supports the mother’s position that the father was coercive and controlling of money. They did not have a joint account and the first home owner’s grant and his salary was paid into his account as he was the owner of the property.
I accept the mother’s evidence that she sought, on many occasions, that they open a joint account, which the father refused. I accept that the father deposited $10,000 into the mortgage on 17 December 2012, however he withdrew $7,494 from the mortgage in January 2015.
In relation to the ownership of the husband’s property in Country BF, I do not accept the evidence asserted by the mother that he owns a farm. He does own agricultural land, the value of which is unknown to me, but I will take that into account in my deliberations. I accept he owns a share in a farm, but does not own the livestock on that land. The evidence given by the father in relation to this issue is accepted by me and had the ring of truth.
He owns an apartment in Country BF, which he failed to put in the balance sheet, which he has chosen not to tenant. I believe his brother or sister lived there for a period of time. He had a tenant, and the tenant was paying about $80 a week.
What that unit is worth is unknown to me, for the husband chose not to provide evidence of its value however he admitted he had this unit under cross-examination. This was well within his capacity to do so, given he is from Country BF, and his mother and family live in Country BF. The best evidence of its value is the assertion by the mother of that which he told her, as set out at paragraph 92 of her affidavit sworn 22 July 2020, that he could sell that apartment and receive $200,000 AUD for it and this is the only evidence I have as to its value and I will accept it. The father had a capacity to provide evidence as to its value, and failed so to do, I will draw an adverse inference that it was not in his interest to provide that evidence.
He also has an interest in his father’s estate of $30,000 which he did disclose.
The Mother’s Evidence in relation to property
The mother would not admit that in 2011 to 2012, when she met the father, she was in some financial difficulty when the evidence is she was. The mother was in arrears with her chambers' fees and there was mortgage arrears on her property. In 2011 the mother had three loans and was some $20,000-odd in arrears on her mortgage. It did the mother little credit to not admit this.
Currently the mortgage on Suburb C is overdrawn in an amount of $8,316, a mortgage in the father's name which the grandmother pays. The mother would not really know the state of the mortgage, unless her mother told her, as she receives no paperwork as it is not in her name. I accept the father has paid the council and water rates on the property since he left that property. The mother agreed, she has not had any demand about the mortgage or any rates.
There was a dispute about the work the father did at the Suburb CC property. I accept that he replaced the kitchen. I accept he replaced a vanity basin in the apartment and he replaced skirting boards, and he did this over a period of seven weeks with assistance from a tradesman, his friend, and I accept the mother's evidence she paid for the kitchen and perhaps the father paid for other renovations. That may well be correct. He was, after all, living in the property rent-free.
The mother gave evidence of their combined work when they moved into Suburb C. They installed a toilet seat together. The father also removed asbestos sheeting from the garage at Suburb C and installed a new roof. The mother said they did landscaping together adding “We did a lot of work together on the property" at Suburb C. They put a new lawn in the backyard, planted trees in the front yard, the mother’s uncle built a back retaining wall and she and the father assisted with that. It was a large brick wall and her uncle is a bricklayer. The mother had a bit of a side hobby restoring old furniture, so she did a bit of staining and painting and sanding.
They installed an IKEA cupboard together adding "We installed a bookshelf" and another smaller cupboard in the back sunroom. The mother gave evidence that:
The applicant [father] would generally ask to help me with things, “Can you get me this, can you hold this, can you help me push this, can you?'”
Without the assistance of the mother’s mother the parties would not have been able to maintain the Suburb C home.
The grandmother was a witness of truth and was a calm and gentle woman who has suffered abuse at the hands of her husband, has desperately missed her grandson and who has been an invaluable emotional and financial support to her daughter.
At paragraph 76 of her Affidavit filed 20 July 2020 she sets out the direct financial contribution she has made to the acquisition, maintenance and conservation of the parties’ property and it is substantial.
The grandmother provided $180,000 to the parties to assist with the initial purchase of the property and this is proven from her bank statements as they had to pay stamp duty, and legal costs.
A sum of $460,000 was borrowed from the Commonwealth Bank and the purchase price was $750,000. The balance of the purchase price of $290,000 together with stamp duty was provided by the mother from the sale of her unit and her mother. The mother had debts at the time of the sale of the Suburb CC property and thus the net proceeds available to fund the Suburb C property was less than the sale price after deducting only the mortgage.
Ms Langley’s mother had also provided her with $80,000 for her barristers’ chambers in 2010 which remains unpaid.
Additionally, she provided her daughter with money during the relationship, provided food and the like for the parties and D and this has continued to date.
Post separation, the maternal grandmother has maintained the mortgage on the Suburb C home from September 2015 paying the arrears then accrued of $8,978.73 and has paid $2,800 per month.
In 2012 the maternal grandmother had a mortgage on her home of $185,489 of which $80,000 was referrable to the mother’s barristers’ chambers and her mortgage is now $350,000. Deducting $185,489 from the current mortgage of $350,000 is an amount of $165,000 which is part of the grandmother’s contribution to the parties’ home of $180,000. Additionally, the grandmother has been paying the mortgage since 2015 from her income. This is a period of five years and at $2,800 per month this totals is $168,000. Thus her initial contribution to the purchase of $180,000 and her contribution to the mortgage of $168,000 is a total direct contribution of $348,000.
I accept the grandmother lives at the home and is thus able to rent her own home to defray the mortgage on her own home however her contribution to the parties’ home is significant and it will be characterised as a contribution by the mother to the home.
The mother conceded many things were done together to make their home to their liking. This is a concession the mother made whereas the father made no such concession and her story has the ring of truth.
The agreed balance sheet is as follows:
| Ownership | Description | Applicants value | Respondents value | ||||
| ASSETS | |||||||
| 1 | H | B Street, Suburb C | $1,500,000 | $1,500,000 | |||
| 2 | H | NAB bank account | $2,446 | ||||
| 3 | H | Motor vehicle 1 | $2,500 | ||||
| 4 | H | Household contents | $,5000 | ||||
| 5 | W | Motor vehicle 2 | $1,000 | ||||
| 6 | W | Household contents | $2,000 | ||||
| Total | $1,509,946 | $3,000 | |||||
| ADDBACKS | |||||||
| 7 | |||||||
| 8 | |||||||
| Total | |||||||
| LIABILITIES | |||||||
| 9 | H | Commonwealth Bank Mortgage | $453,412 | ||||
| 10 | Loans from third party’s | $11,000 | $714,044 | ||||
| 11 | Legal services/rate setter | $133,000 | $180,000 | ||||
| 12 | H | Court fees | $16,677 | ||||
| Total | $614,089 | $894,044 | |||||
| SUPERANNUATION | |||||||
| Member | Name of Fund | Type of Interest | Applicants value | Respondents value | |||
| 13 | Super Fund 1 | $83,108 | |||||
| 14 | Super Fund 2 | $0 | |||||
| Total | $83,108 | $0 | |||||
| FINANCIAL RESOURCES | |||||||
| 18 | H | Half interest in late father’s Estate | $30,000 | ||||
| 19 | H | Vacant agricultural land in Country BF | $1,770 | ||||
| 20 | H | Husband’s unit in Country BF | $200,000 | ||||
| Total | $31,770 | ||||||
The father asserted he was entitled to 25% of the net equity of the Suburb C property.
The mother asserted she retain Suburb C and he retain what he has.
The property for division
Referring to the balance sheet. I will disregard the value of the parties’ motor vehicles, money in the bank, contents and the like as set out in the agreed balance sheet as it is now eight years since separation and these are their assets to which the other has made no contribution.
Similarly, debts for legal fees and loans taken out post separation are the parties’ debts and not relationship debts.
I find the assets and debts that form the property available for distribution are:
| Ownership | Description | Value | ||||
| ASSETS | ||||||
| 1 | H | B Street, Suburb C | $1,500,000 | |||
| Total | $1,500,000 | |||||
| LIABILITIES | ||||||
| 2 | H | Commonwealth Bank Mortgage | $453,412 | |||
| 3 | H and W | $15,000 reimbursement to the Department for Professor TT’s report | ||||
| Total | $458,412 | |||||
| SUPERANNUATION | ||||||
| Member | Name of Fund | Type of Interest | Value | |||
| 4 | H | Super Fund 1 | $83,108 | |||
| Total | $83,108 | |||||
| FATHERS ASSETS | ||||||
| 5 | H | Half interest in late father’s Estate | $30,000 | |||
| 6 | H | Vacant agricultural land in Country BF | $1,770 | |||
| 7 | H | Husband’s property in Country BF | $200,000 | |||
| Total | $314,878 | |||||
The father’s assets in Country BF were his assets to which the mother made no contribution and does not seek a share of. Nor does the mother seek a super splitting order.
I will deal with this property matter on an asset by asset basis consistent with the decision of Norbis v Norbis (1986) FLC 91-712 given the unusual facts in this matter
That decision relevantly says at [25]-[26]:
.. Section 79, in particular s 79(4), refers to ‘any property of the parties to a marriage or either of them’ and that expression is sufficient to encompass both the entirety of their property and their individual interests. If the parties’ interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of the property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets, as was convenient in this case. It is true, as Nygh J. pointed out, that where this is done, at the end of the exercise a calculation of the overall proportions in which the total property has been divided may serve as a useful check to ensure that the result is not disproportionate as a whole.
Dealing with the Suburb C property.
I have formed the view that the father made no contribution to the net proceeds of sale received by the mother when she sold her apartment at Suburb CC in 2012 and netted some $300,000.
I formed the view that the mother and her mother contributed the difference between the monies borrowed from the Commonwealth Bank of $460,000 and the cost of the property including stamp duty and legal fees from their resources.
I have formed the view that the father’s contribution to the Suburb C property was equal with the mother in terms of doing the garden and putting together cupboards, taking the roof off a garage and the like.
I have formed the view the father was working and he paid the mortgage and outgoings whilst living that property and that he paid the mortgage for one year post separation and has continued to pay rates and taxes. The rates and taxes amount to some $18,000 in one year and the mortgage at $2,800 per month is $33,600 per annum, a contribution by him of some $54,000.
I find whilst the parties lived together the mother was the primary parent and homemaker and was the child’s primary carer from his birth in 2013 to his removal from her care on 8 September 2017, a period of four and a half years.
I find the mother’s initial contribution to the acquisition of the Suburb C property to be superior to the father and that he put no money into its acquisition. His financial contribution commenced when he paid the mortgage on the property whilst he resided there and for one year post separation, and maintaining the rates and taxes post separation given the property was in his name.
The parties lived in the Suburb C property for 15 months, otherwise the mother has maintained the mortgage on the property to the exclusion of the father for six years.
At one level, the mother and her mother have made a 100% contribution to the acquisition, maintenance and conservation of the property, but I do accept there has been a small contribution by the father.
I note that the father received a redundancy payment of $45,000 post separation which he retained post separation, an asset the mother made a contribution to, and that he retained the first home owner’s grant of $7,000. I further find he sent considerable sums of money to Country BF from either the first home owner’s grant and/or his income and these assets were not made available to the mother and child or put towards the conservation or maintenance of the property.
Given the mother’s overwhelming contribution to the initial acquisition of the property, payment of the mortgage post separation, and the father’s retaining of the parties’ joint assets being his redundancy payment and first home owner's grant totalling some $52,000, together with money sent to Country BF from his income during the relationship of no less than $16,800, his contribution of $54,000 to the property by way of paying mortgages when he lived there and for twelve months post separation, rates and taxes to date has been returned to him. In those circumstances, I find the wife’s contribution based entitlement to be 90%.
There is no doubt that if the grandmother had not moved in with her daughter and paid the mortgage these parties would not have this property.
Going down to the future, I have determined that the mother’s s 90SF(3) factors are significant due to the violence she sustained at the hands of the father, and that she now suffers from complex PTSD which inhibits her capacity to work at this time. Consistent with the Full Court’s decision in Britt & Britt (2017) FLC 93-764, the mother’s contribution as parent and homemaker during the relationship and post separation was also made harder by the father’s treatment of her and there is a clear nexus between his conduct and her contributions.
The mother is a trained lawyer and was a barrister at the commencement of the relationship and all that has been lost to due to the relationship and the treatment perpetrated upon her by the father. The quest to have her son returned to her care has consumed her.
The father’s treatment of her and its consequences being complex PTSD, and the impact of that condition upon her functioning are directly related and she will have D in her almost sole care. D will need his mother and grandmother to focus upon his needs and I am confident they will do this. D will require better than average parenting upon his transition to his mother’s full time care and with the support she has from Professor LL and Mr M, the mother will provide that better than average parenting. In those circumstances, her capacity to work from both her own mental health difficulties and need to care for D is significantly impacted.
I accept the father will pay child support, however this will not be a large amount and I am unclear whether and when the mother can ever work.
Contra this with the father who has a capacity to work, which he continues to exercise, and the relationship has not impacted upon this capacity at all.
In these circumstances, I assess her s 90SF(3) needs at 10%.
A super splitting order was not sought and it is appropriate the father retain his superannuation at $83,108. I note the father has withdrawn $20,000 from his superannuation this year as well.
Further, the husband has his assets in Country BF, being a home unit and agricultural land. I have assessed the value of the unit at $200,000 and the agricultural land at his assessed value.
As the father will be retaining his superannuation and his properties in Country BF, this is total assets in his name of $314,878 8. I note had the father not withdrawn $20,000 from his superannuation, his assets would have totalled $335,000 of the assets as I have found them to be.
In these circumstances, I find it is just and equitable that the mother retain the Suburb C property, giving her nett assets of $1,007,000 and I will so order.
Accordingly, I will order the father to transfer his interest in the property to the mother without payment provided she discharges the mortgage on the property, leaving him mortgage free.
Both parents are to pay to the Department the sum of $15,000 in respect of Professor TT’s report within 120 days.
In relation to the costs order made by Judge Harman, I cannot set that order aside however enforcement of orders is a discretionary matter. Despite having said to Mr Shaw, counsel for the father, in submissions it should be paid, it is an order of the Court I had not yet reached any clear conclusions on the evidence.
Reflecting upon my judgment, having regard to my findings of the father’s mendacity, the unjust treatment of the mother and that she was telling the truth and was not believed I will not exercise my discretion to enforce that order against the mother.
Having made the findings I have against the father it would be unconscionable to order the mother to pay these costs and I will order a permanent stay of Judge Harman’s orders of 8 July 2015.
These are the orders the court proposes to make.
I certify that the preceding eight hundred and seventy seven (877) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 18 December 2020.
Associate:
Date: 18 December 2020
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