Tate and Garnet
[2016] FCCA 2643
•13 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TATE & GARNET | [2016] FCCA 2643 |
| Catchwords: FAMILY LAW – Father to spend time with child supervised by a family member once each Sunday due to his erratic and volatile behaviour at times – presumption of equal shared parental responsibility rebutted – father has an undiagnosed underlying mental health issue which he refuses to deal with – wife entitled to 75% of the matrimonial property – husband’s behaviour made wife’s sole contribution as parent and homemaker more arduous pre and post separation. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 65DA, 75(2), 79 |
| Applicant: | MS TATE |
| Respondent: | MR GARNET |
| File Number: | SYC 222 of 2013 |
| Judgment of: | Judge Henderson |
| Hearing dates: | 22-24 February 2016; 19-20 September 2016 |
| Date of Last Submission: | 20 September 2016 |
| Delivered at: | Sydney |
| Delivered on: | 13 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fowler |
| Solicitors for the Applicant: | Cominos Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
That all previous parenting orders in respect of the children X, born (omitted) 2000 and Y born (omitted) 2009 (“the Children”) be and are hereby discharged.
That the Mother has sole parental responsibility for the children.
That the children live with the Mother.
That any time spent by X with the Father be as arranged between the Father and X.
That Y spend time with the Father on the first Sunday each month as follows:
(a)From 9 am to 5 pm under supervision of Ms R, Ms I or another family member as may be agreed between the Mother and the supervisor and commencing on the first Sunday of the month following the date of these orders.
(b)The child to spend additional time with the father at Christmas, birthdays, Easter father’s day and other like occasions as agreed between the mother and supervisor.
(c)The supervisor has authority to terminate Y’s time with the father on any occasion they deem appropriate, and is to forthwith return Y to his mother’s care.
(d)Should time be suspended on two occasions serially then the father’s time with the child Y is to cease forthwith.
(e)The mother and the supervisor will determine where changeover is to occur.
The Mother does all acts and things necessary to ensure the children access the ‘Children of Parents with a Mental Illness Program’ on the internet.
These orders shall be explained to Y by the Independent Children’s Lawyer prior to the first occasion of time pursuant to these orders.
The Mother is to sign all documents and give all required permission to authorise the children’s school to provide the Father with copies of the children’s school reports within 7 days of these orders.
That each parent be and is hereby restrained from:
(a)Denigrating or making critical or derogatory remarks about the other parent or any member of the other parents household, in the presence or hearing of the children, or allowing any other person to do so;
(b)Discussing these proceedings or any other proceedings relating to these parties with or within the presence or hearing of the children;
(c)Showing the children any document pertaining to these proceedings or any other legal proceedings relating to these parties.
Within 3 months of the date of these orders, the Mother shall pay to Legal Aid NSW the amount of $5,090.50 being her share of the Independent Children’s Lawyers costs in this matter unless her liability to contribute towards these costs is waived.
For the purposes of s 11 of the Australian Passports Act 2005 (Cth) (“the Passports Act”) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the children X born (omitted) 2000 and Y born (omitted) 2009, upon application by the Mother and without requiring the consent of the Father to the child travelling outside the Commonwealth of Australia or his signing the passport application, the Court being satisfied this order is in the best of the child.
Notwithstanding any provision in the Family Law Act 1975 (Cth) to the contrary, the Mother be permitted to travel with the child outside of the Commonwealth of Australia without first obtaining the consent of the Father.
Within 90 days of the date of this Order the wife is to pay the husband $113,000 in consideration of the husband transferring his interest in the property at Property B to the wife.
The husband is to sign all document necessary to bring into effect order 13 herein including but not limited to signing a transfer.
In the event the husband fails to sign all necessary documents within 10 days of a request being made for him to do so the wife may sign all necessary documents in his name to bring into effect order 13 herein.
In the event the Wife fails to comply with order 13 the wife to place the property at Property B on the market for sale at the best price reasonable obtainable and the wife shall have sole control of that sale.
The husband is to sign all documents necessary to bring into effect order 16 herein including but not limited to signing any agents agreement, contract, or transfer.
In the event the husband fails to sign all necessary documents within 10 days of a request being made for him to do so the wife may sign all necessary documents in his name to bring into effect order 16 herein.
The wife shall pay from the proceeds of sale:
(a)Agents commission;
(b)Costs of sale and usual conveyancing adjustments;
(c)$113,000 to the husband;
(d)The balance to be retained by the wife.
Otherwise each party retains all other property and liabilities in their name or possession.
IT IS NOTED that publication of this judgment under the pseudonym Tate & Garnet is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 222 of 2013
| MS TATE |
Applicant
And
| MR GARNET |
Respondent
REASONS FOR JUDGMENT
The matter of Tate & Garnet was both property and parenting heard on 22, 23 and 24 February 2016 and adjourned part-heard to 19 and 20 September 2016.
On the first three days of the hearing the mother was represented by Mr Fowler of Counsel. The children were represented by Ms Karagiannis and the father was self-represented. On the remaining two days of the hearing, both mother and father were self-represented. Ms Karagiannis continued to act for the children.
The material read was voluminous in part due transcripts of evidence from 22, 23 and 24 of February 2016. There were an enormous number of exhibits tendered.
Evidence
The parties’ primary evidence is as follows.
For the Mother;
a)Application filed 5 February 2016;
b)Affidavit of 5 February 2016;
c)A financial statement of 5 February 2016;
d)Affidavit of Ms H being an English translation of an asserted loan agreement the wife says she has between she and her parents
e)The wife sought orders that X spend time with his father according to his wishes which is the arrangement currently in place and that Y spend supervised time with his father. Ultimately the mother sought Y spend no time with the father
f)In relation to property the wife sought she retain the unit and the parties keep what assets they have
The wife relied upon the family report prepared by Ms L dated 24 September 2014;
The husband’s material was;
a)Response filed 15 March 2013;
b)An affidavit filed 5 February 2016 allegedly sworn 14 May 2016;
c)Financial statement filed 15 May 2013;
d)Case outline field for the February hearing ;
e)Oral evidence from his sister Ms R.
The husband initially sought that the boys live with him equally and that the property be split 70% in his favour. His parenting application was largely based upon his desire to retain the unit.
If he was not successful in an equal time order he sought alternate weekend time with no supervision.
The paternal grandmother, Ms I, gave evidence at the resumed hearing at the request of the ICL. Ms I had filed an affidavit on 1 November 2013 and had been interviewed for the family report.
At the time of the hearing in February 2016, the grandmother, who had been supervising the father’s time with the children, had ceased supervising his time. The father was spending no time with either child, he having behaved extremely poorly towards his mother in December 2015 and January 2016 in the presence of and hearing of the children.
The father was living in a boarding house in Sydney with no job. His position was parlous. His life had significantly changed by September 2016 for the better. He was working for a (employer omitted) company and had done so for the past 6 weeks, he had resumed living with this mother in (omitted) near (omitted) on the weekends and in his sister Ms R’s home in Sydney during the week to enable him to work. He was again allowing his wonderful supportive family to assist him to get his life back on track. He was spending time with X in accordance with X’s wishes which was virtually each Sunday. His sister Ms R was in court with him for the whole of the 2 days of hearing in September 2016.
Ms L gave evidence on 20 September 2016
The voluminous exhibits are as follows:
a)Court Exhibit 1 was Ms L’s report;
b)For the Mother:
i)Mother’s Exhibit #1, an affidavit of translation of an asserted loan agreement between she and her parents in relation to the purchase of a property at (country omitted) called the (country omitted) property;
ii)Mother’s Exhibit #2, the mother’s calculations of the amount still owing on that property, calculated in gold as is, apparently, the (nationality omitted) tradition;
iii)Mother’s Exhibit #3, an email from the father to the mother’s lawyer;
iv)Mother’s Exhibit #4, notes of the father’s admission to (omitted) Hospital;
v)Mother’s Exhibit #5, notes of the father’s admission to (omitted) Hospital;
vi)Mother’s Exhibit #6, subpoena from Dr S, a psychiatrist the father has seen;
vii)Mother’s Exhibit #7, notes from a Dr P, a doctor the father has seen;
viii)Mother’s Exhibit #8, documents from Dr W;
ix)Mother’s Exhibit #9, (omitted) Surgery subpoena documents;
x)Mother’s Exhibit #10, medical notes in relation to Mr Garnet and the family and the children and the wife from medical centre at (omitted);
xi)Mother’s Exhibit #11, documents produced by the New South Wales Police;
xii)Mother’s Exhibit #12, documents produced by the New South Wales Police of the charges, convictions against the father;
xiii)Mother’s Exhibit #13, fact sheet of the apprehended domestic violence order that the father was charged with, found guilty of; and
xiv)Mother’s Exhibit #14, further ADVO taken out by the mother against the father.
c)For the Independent Children’s Lawyer:
i)Independent Children’s Lawyer Exhibit #1, annexure 3 to the affidavit of Ms I, the paternal grandmother;
ii)Independent Children’s Lawyer Exhibit #2, a letter from Legal Aid to Ms L in relation to this matter;
iii)Independent Children’s Lawyer Exhibit #3, the course called “Dealing with a parent with mental illness” which the mother indicated to the Court in February, she would take the children to and attend upon by accessing it on the internet and which she has failed to do;
iv)Independent Children’s Lawyer Exhibit #4, Notes from (omitted) High School subpoena;
v)Independent Children’s Lawyer Exhibit #5, Handwritten list of potential supervisors for the time the child spends with the Father. The list was later replaced by a typed up list by Ms R;
vi)Independent Children’s Lawyer Exhibit #6, Risk of Harm Report made by Family Dispute Resolution Practitioner;
vii)Independent Children’s Lawyer Exhibit #7, Minute of Orders sought by the ICL.
d)For the father:
i)Father’s Exhibit #1, his calculations of the price of gold for the last 12 years;
ii)Father’s Exhibit #2, various financial documents, including his tax return.
The mother, the father, the paternal grandmother and Ms L were examined and cross-examined. The mother’s sister came to Court to give evidence on his behalf as well. The father has a most supportive family consisting of his mother and his siblings. They are all prepared to assist him by way of providing supervision for his time with the child, Y, as he is ultimately the child that is at risk from the father’s aberrant and bizarre behaviour at times.
There is also a property element to this matter. The wife seeks 75 per cent of the assets of the parties. Neither party seeks a super splitting order.
At the resumed hearing the husband sought an equal division of the parties’ property including the property in (country omitted), in the wife’s name. He asserts this is a matrimonial asset. The wife asserts although it is in her name, it is actually a property owned by her parents and asserts she signed the loan documents at her parents request in respect of the purchase of the property but neither the property or the loan are hers. In other words these transactions are a sham otherwise her evidence makes no sense at all.
The children of the marriage are X born (omitted) 2000, now aged 16 and Y born (omitted) 2009 and now aged seven and a half.
At the commencement of the hearing, the wife sought to have sole parental responsibility and that Y spend supervised time with his father. X has been spending time with his father as he sees fit, by contacting his father directly, since about March/April of 2016. Although the wife stated that X may be at some risk with the father and that his behaviour has deteriorated since he commenced to spend this time her evidence was not convincing. Both the independent children’s lawyer and Ms L posited that this was appropriate for X and that no orders ought to be made for X spending time with his father. X is doing well at school despite the mother’s position.
I will make no orders in respect of X, other than he live with his mother and a parental responsibility order.
The short history
The mother is 46, the father is 44. The parties met in 2000 and they married on (omitted) 2000. X was born in (omitted) 2000. The mother alleges that the father treated the child poorly and held him upside down over the balcony on their third floor apartment.
The mother returns to (country omitted) from December 2000 to November 2001, doing a (course omitted). The mother returns to Australia.
The parents separate in February 2002 to May 2002 and the mother says the father provides no financial support to the mother or X.
In 2004 an apartment is purchased in (country omitted) in the wife’s name. The wife asserts this is an apartment her parents purchased in her name. The husband asserts this has been purchased from matrimonial money.
In 2005 the mother obtains a job. The father had been unemployed for six months at that stage. The mother finishes her (course omitted) in May 2005. She is a talented and gifted (occupation omitted). The mother had worked throughout the parties’ relationship, only taking one year off when she gave birth to X and Y and had always obtained scholarships in relation to her (qualifications omitted).
The parties purchased their unit in Property B in December 2006 for $260,000. The parties had saved $80,000 to put towards this purchase and the mortgage was $180,000. The saving of $80,000 by the parties is a remarkable feat for people who were not on high incomes, where the mother was studying for a (qualifications omitted) and being supported by scholarships and the father had been unemployed during periods of time during the parties living together. Additionally they travelled to (country omitted) and variously lived in (country omitted) and Australia.
The saving of the deposit of $80,000 is inconsistent with the father’s evidence that these parties were able to save $80,000 together with many thousands of dollars to purchase a property in (country omitted). The evidence does not support that the parties earnt sufficient income during this period of time to support themselves. They saved $80,000 towards the purchase of their property and saved many more unknown thousands of dollars to purchase a property in (country omitted).
In addition the parties are able to pay off the mortgage on Property B in three years. This is inconsistent with the husband’s assertion that they were able to do this and move cash to (country omitted).
Y was born on (omitted) 2009. The wife alleges that from that period of time the husband became abusive towards her particularly sexually. She claims he raped her. I will not determine whether this allegation is correct or not. However, it is clear that the husband traumatised his wife by his sexual advances towards her.
The children have been subjected to abuse and poor behaviour and family violence in their parents’ household. The husband alleges the wife was abusive to him, by hitting and scratching him. The wife alleges the husband pushed and yelled at her. It is clear that these children have been subjected to very poor behaviour by their father.
The husband admitted that he would wake X up after a fight and ask him to observe scratches that his mother had caused to him and then ask X to determine which parent was right, him or the mother. That is completely inappropriate behaviour for any parent to engage in.
In 2012 the husband drags X out of bed in the middle of the night, to tell him that his mother was a witch.
The wife called for X’s help on two occasions in February and March 2012 to assist her when the husband was attacking her and trying to undress her.
The parties separated on 9 April 2012 after the wife asserts the husband father assaulted her sexually in the bedroom while she was sleeping in the same bedroom as Y.
The wife made a compliant to Police and the father was arrested and charged with sexually assaulting the mother.
The first domestic violence order is made against the husband on 10 April 2012 for the protection of the wife.
After separation, the husband occasionally saw the children at (omitted) Contact Centre for three hours each fortnight at significant cost.
In September 2012 the paternal grandmother called the police because the father had pushed and shoved her. The grandmother sought to play that down in her evidence. However, he was clearly behaving very poorly towards his mother and there is a similarity in his behaviour towards his mother and his wife.
The husband suffers a significant mental illness and has done nothing to address the consequences on that illness, whatever it may be called, upon his functioning as parent, a husband and an adult.
Interim consent orders are made on 5 July 2013 for the children to live with their mother and spend time with their father, supervised by (omitted).
In August 2013 the husband was found not guilty of sexually assaulting the mother.
In November 2013, interim consent orders were made that the parties were not to take the children outside the Commonwealth of Australia and that they will live with their mother and spend time with their father every Sunday from 9 to 5, supervised by Ms R or Ms I.
The husband is found guilty of breaching the ADVO in April 2014.
Family report interviews occurred in September and the report is released on 24 September 2014.
The husband and his mother move into rental premises in December 2015 at (omitted). The husband’s behaviour deteriorates significantly in 2015. He was yelling and being abusive towards his mother, the children’s mother and all in the presence of and hearing of the children.
Interim consent orders are made in March 2015 providing for holiday time, again supervised by the husband’s mother and/or sister.
In April 2015 neighbours call the police concerning the husband’s behaviour.
On 11 May 2015 the paternal grandmother calls the police about the father’s behaviour. He is taken to (omitted) Hospital. There is a diagnosis, or an indication that he suffers from Asperger’s. This is something that the father is traumatised by and finds very difficult to accept. As I said to him on many occasions during the hearing, a mental illness or a condition a parent suffers from is not the gravamen of the issue for me, it is the impact upon children of adult behaviour and what steps the parent takes to deal with their mental illness.
Ms L notes in her report that the behaviours of the father were, for her, similar to those exhibited by people who suffer from Asperger’s.
In June 2015 the paternal grandmother took the children away from the father because he was “ranting and raving”, to use the grandmother’s words and said so in an email to the mother. The grandmother and mother continue to have a close and trusting relationship and this grandmother has always acted to protect her grandchildren.
On 26 July 2015 the husband is shouting at his mother while the children are in their care and her neighbours call the police.
The husband removes the children from the paternal grandmother’s care on 26 July 2015 in breach of the court’s orders, drives to the mother’s home bangs on her door, bangs on the neighbours’ door and makes over 100 calls to the wife. Neighbours chase him away with a cricket bat and call the wife. The wife calls the police because she is not at home. The husband ultimately returns the children to their grandmother on 26 July 2015 however his behaviour is frightening for the children and he is out of control.
A new interim ADVO is issued against the husband due to this incident. He sends an offensive message to the mother via text on 30 July 2015.
In the attempt by police to serve him with the summons to appear to answer the ADVO on 31 July 2015, the father’s behaviour is so out of control he is subdued by capsicum spray and he is taken to (omitted) Hospital and transferred to the (omitted) Hospital, where he spends time at that institution for several days.
On 12 August 2015 the husband says to X that his mother is “a bitch” and the neighbour is “a bitch”. The grandmother and father move out of their rental property in 2015.
In November 2015 the husband is required to be escorted from the Legal Aid mediation in 2015 by armed security guards due to his out of control behaviour. ICL’s Exhibit #6 is the business record of this incident and his concerning and aberrant behaviour at that time.
The husband commences a campaign against his own mother, texting X calling his own mother “senile”. She is anything but that and is a wonderful woman. The husband then texts X reporting what he believes the Judge said. This is completely inappropriate behaviour by the husband.
An ADVO order is made against the father for protection of the mother for 12 months in December 2015.
The husband moves out of his home in December 2015 and in February 2016 was living in a boarding house situation.
There is an incident in December 2015 when the grandmother is supervising the husband’s time and she is in the car with him. She tells him she is concerned about his driving and that it is road rage. The husband and grandmother argue in the car. The children are present while this argument continues. They arrive at the grandmother’s home in (omitted) and in the morning the husband continues the argument with his mother as he did not like her controlling his behaviour. His behaviour is unacceptable at every level.
On 21 December 2015 the paternal grandmother swears an affidavit detailing her concerns at the husband’s aberrant and concerning behaviour and states that she is becoming increasingly frightened by him and echoing the wife’s’ concerns that he is a poor role model.
The husband sends offensive messages to his own mother in December 2015.
In January 2016 he is charged with breaching the domestic violence order and is found guilty of that breach and the order expires in December 2016.
On 12 January 2106 the paternal grandmother is supervising the husband’s time with the children in (omitted). The husband and grandmother have an argument. It is of such magnitude that a ranger calls the authorities and the husband is taken away and has to leave the grounds. The children, again, witness the aberrant, erratic, uncontrolled behaviour of their father towards women.
The risk of significant harm report ICL exhibit 6, which the husband balked at when his behaviours in November 2015 were put to him in cross examination, is as follows;
“2. The father’s behaviour at conference appeared paranoid, anxious, erratic, incoherent, disturbed given to sudden change”. He repeatedly claimed the mother is a “violent criminal”, she “can’t look after the children. Father said 7 year old son Y “clings” to older brother, will not spend time “one-on-one” with the father.” The father wants a violence order lifted, wants to spend unsupervised time with the children.
3. Unclear whether father’s sudden mood swing at conference, is due to underlying mental illness.”
The family report author recommended the husband undergo psychiatric assessment prior to any judicial determination. He simply refuses to have any assessment in relation to his mental health. He will not do it. One reason may be, as he told the mediator, he would not do it because he might be found to be a risk to the children.
The report goes on to say he denies any mental illness. He denied two recent scheduled and admissions at (omitted) Hospital and became very agitated when these issues were raised. He had to be escorted from the building.
In November 2015 the husband’s behaviour was out of control. It was violent, erratic, frightening and explosive. He put his children at significant risk of emotional and psychological harm by the rantings against their mother and grandmother.
Happily, since that time the father has taken some positive and most welcome steps in his life. The first is he has obtained a job about six weeks ago, as a (occupation omitted). He earns somewhere between $700 and $800 net per week. He has moved back to live with his mother in (omitted) and Ms I gave evidence via the telephone to support the positive changes she has noted in Mr Garnet.
Ms I said he is calmer and quieter, he is more engaged with life, he is (hobby omitted), which the father confirmed he was. He is attending (hobby omitted), which the father confirmed he was and he appears to be enjoying life again. He has learnt his lesson and when asked what that lesson was she said that his behaviour in 2015 has resulted in him not seeing his younger son, Y and only seeing X effectively at X’s request. The grandmother is pleased with his progress and she said the family is supportive of the father continuing on this positive trajectory.
However, this is very early days for it is as clear as a bell the father has suffered from significant mental illness, be it Asperger’s, be it whatever name you call it, perhaps for the majority of his life and the Court must be cautious.
His attitude towards women and in particular the mother is disgraceful. His conduct towards his own mother is disgraceful. He showed no remorse in Court for this poor behaviour and gave no apologies and sought again and again to justify his attitude and conduct when it is not justified at all.
In the family report prepared by Ms L he pursued an equal time parenting arrangement. He pursued this until the last day of the hearing despite Ms L’s clear recommendations of equal time not being in the children’s’ best interest and him not having spent any time with Y since February 2016.
When faced with the overwhelming evidence of how an equal time order would work against the children’s best interests he ultimately accepted the position put forward by the Independent Children’s Lawyer in ICL Exhibit #7 which was that the children live with their mother, she have sole parental responsibility and he spend time with X as X arranges with him and he spend time with Y one Sunday per month, supervised by a member his family.
Ms L opined in her report at paragraph 24:
“Mr Garnet (aged 43 years) was very difficult to engage. He presented as someone with limited social interaction and communication skills. He was combative and defensive when answering even the simplest of ‘yes/no’ questions.”
Ms L reiterated that this described the behaviour she observed of him in Court when he was asking her questions. I observed that same behaviour. To get a yes/no answer out of the husband was difficult. It was time consuming and exceedingly frustrating.
The father’s presentation in Court before me is precisely as it was before Ms L and as she described, “He would frown at each question, then smile quizzically before taking up to several minutes to answer.” This is a perfect description of his behaviour throughout the five day trial. He enjoyed playing semantic games. He did this with me on many occasions which became extremely frustrating when the real issue was the time Y should be spending with him.
The father’s belief’s commencing from paragraph 25 of the report that his behaviours have been completely vindicated by his acquittal on the rape charges is not determinative of my findings of the impact of his behaviours on his wife and children.
I am satisfied, after hearing the mother give evidence and reading her affidavit, that the husband’s behaviours traumatised her particularly sexually. He believes she owes him time with the children as compensation for her lying. He denied ever having sex with her without her consent. He said she was violent to him. It took place when they were intimate with each other “because she couldn’t express her feelings properly so she would scratch me because she wanted me to stop.” That is, as I read it, an admission of him forcing himself upon this poor, hapless woman.
He further said to Ms L that he “only realised after the charges had been laid that Ms Tate was suffering from poor self esteem about her breasts, as a result of going through menopause and she was “overly sensitive because I was pointing out to her that they looked small and old.” That is a demeaning and insensitive conversation to have with your wife, the mother of your children.
He stated that Ms Tate would complain to him she felt cold and nervous when he tried to give her a hug and she would attack him straight away. The father’s behaviour towards his wife has been monstrous and supports the family report writer’s view that the mother’s experience of the father was violence, poor behaviour, changeability and that she has been traumatised by her relationship with him.
Mr Garnet said to Ms L:
“Overall we had a healthy sex life and she would just be cold at the beginning. That’s what happened on that final night.”
This is a warped view and demonstrates someone who is not in touch with reality and is self-absorbed with little capacity to understand the impact of their behaviours on others.
Ms L writes:
“It may assist the Court in its decision-making if Mr Garnet were to have an expert assessment about whether or not he has adult Asperger’s, as he demonstrated many of the usual traits and characteristics commonly associated with this disorder.”
She believes that the:
“Mr Garnet was at the very least verbally abusive to Ms Tate (using derogatory, demeaning and belittling language) when he felt his needs were not being met.”
And that he:
“Lacked the capacity to engage in an intimate relationship based on respect and sensitivity.”
The boys appeared ill at ease with their father when time recommenced in April 2012 at (omitted). They relaxed as things went on. In her report Ms L acknowledged that in the play session with their father, the boys greeted their father with smiles but did not get up or stop what they were doing.
The husband put to Ms L that the boys were playing computer games and that is why they did not stop what they were doing. Ms L disagreed and said she would have expected the boys to stop what they were doing and engage with their father. In her report she said Mr Garnet took no cues from them. Mr Garnet was most upset by this and Ms L fleshed out what she meant as follows:
“Mr Garnet asked Y to “show me all the toys in here.” Y leapt to his feet and began to tour around the room with his father. X joined them but he looked bored. This activity soon petered out and they all sat down at the table, as if wondering what to do next.”
Ms L said she what she was looking for in this sessions was the father to engage in an activity with the children, because there are many activities at various levels in this room and what she was doing was observing parents’ interaction with their children.
Ms L said that there were long periods of silence where no one spoke with the children and that there was a flat disinterested effect showing a disordered attachment, and that they were both emotionally detached from their father.
Ms L accepted that it was an unusual situation and artificial. However, saw no signs of coaching as Mr Garnet posited the mother had done, and was of the view that the children were expressing their real wishes with their father, which was for X to spend time with his father, as he does, and, for Y, that he enjoyed his Sunday time with his father.
Ms L said Y was not wary with speaking to the family consultant and gave her a big high-five to signal his enjoyment of the day and went on to say in her report:
“Mr Garnet had already expressed doubts about the “bias” inherent in such a session but he was unable to elaborate about what he meant by this. He said that it did not help that the boys ‘know why they are there today’.”
Mr Garnet could not elaborate what the “bias” was to her, nor could he to the court and she believed X’s views were his own without overt pressure from either parent. Mr Garnet would not answer her question whether he had ever seen a counsellor, and kept questioning the family consultant. That is precisely the experience of the husband in the courtroom. When something came up that the father did not like he simply prevaricated.
It is clear to me that the mother’s evidence of the husband playing a minor role in the boy’s life and that she has carried out the overwhelming contribution in parenting of the children is correct from Ms L’s observations of the boys and their father and the absence of any specificity of the boys lives and routines in his affidavit material. He has never been to a parent teacher night for example.
I find he has played a minimal role in the boy’s life on a day to day basis.
In her report Ms L had opined that there be joint parental responsibility; the children live with mother; they spend time with their dad on weekends, during the school holidays, and that time be supervised by a family member. Importantly, that the children attend a course, that the independent children’s lawyer had recommend and proffered to the mother, to assist them to deal with a parent with mental illness. In her oral evidence Ms L said it was an imperative the boys attend such a course if they are to continue spending time with their father. The wife failed to carry out this important task and I will order her to do so.
After Ms L heard the aberrant behaviour of the father throughout 2015 including hospital admissions, his conduct towards his mother in the children’s presence in in December 2015 and January 2016; his continuing haranguing of the mother via text message and approaching her home; additional domestic violence orders being taken out; sending a text message to X, after X supported the grandmother’s version of events at (omitted) in 2016 telling X he had let the father, and Y down in telling the truth; and observing the father’s continued erratic and at times aberrant presentation in Court when answering or asking a question she formed a view that even supervised time would not be in Y’s best interest. Her opinion was that the child would be at risk from his father’s aberrant behaviour and that the husband would not obey any rules of a contact centre, and that his family members would not be able to control him because of the difficulties his own mother had on at least four occasions in 2015.
Ms L also agreed that equal shared parental responsibility could not work and must reside solely with the mother.
This was a substantial change from the recommendations in her report. This took the father and Independent Children’s Lawyer by surprise. However her changed recommendations came about due to the husband’s behaviour in Court and with her in 2015, his lack of insight into the consequences of his behaviour on others and a total absence of any attempt by him to engage in diagnostic and therapeutic interventions for his benefit. He flatly refuses to do this.
The changed recommendation of Ms L of no time was taken up by the wife and is no doubt why the husband agreed with the Independent Children’s Lawyer’s proposed orders.
The wife said she would follow the recommendations of Ms L, and she, although initially having believed that supervised time would be in Y’s best interests, was now of the view that Y should spend no time with his father. However, what the mother failed, perhaps, to appreciate, and given she’s representing herself, I am not being critical is that Ms L also said, when questioned, if the supervisors had the capacity to cut the time short because of the father’s poor behaviour would that suffice? Ms L believed that such an order would strike a balance whereby the supervisors were in control of the time, not the father, and they would thereby be able to direct the time that the father had and cut it short if the father, again, began to abuse, belittle the mother, behave in an erratic uncontrolled angry fashion, ranting and raving, and thus the orders were crafted by the independent children’s lawyer having regard to Ms L’s concession of the balance to be struck.
There is agreement that;
a)the children are to live with their mother;
b)that the mother is to have sole parental responsibility;
c)that the mother may remove the children from the Commonwealth of Australia, on any occasion she deems appropriate, by giving the father 28 days’ notice of her intention to remove the children from Australia, the destination and contact details whilst ravelling overseas;
d)that the mother may apply for a passport for the children to travel overseas in the absence of consent or otherwise of the father including a renewal of their passports. Given that the she does travel frequently both within and outside of Australia, (occupation omitted) and the like it is important the children can travel with her at those times. The mother is no flight risk and Australia is, clearly, her home;
e)that the children be able to attend paternal family events, such as the grandmother’s birthday, Christmas functions, Easter and the like, with the large extended family around them;
f)that time would be as otherwise agreed between the parents.
The mother did not agree to Y having regular supervised time with his father even with the proposed order that this time could be cut short by the supervisors.
Ms L said once a month would be sufficient for Y to keep up a recognition contact of his father, but ensure he did not have too much of his father, for, unlike X, he cannot make the decision himself of time or no time. X, at 16 can cease the time when it suits him and can determine not to go.
The mother agreed to telephone communication or Skype or FaceTime communication with Y and the father, provided Y can cease that communication should he so wish.
I formed the view that it is an order in Y’s best interest, that he spend this time with his father once a month and with his paternal family, who will supervise that time and be in total control over the father’s time for the following .
Y expressed a wish to the family consultant to continue to see his father on a Sunday as he had been doing which is with his grandmother present. This will continue as Ms I said she will supervise time. Although the mother made much of Y now saying to her he did not want to see his Dad, X has been seeing him, without incident. Understandably it is very difficult for the mother to be positive about the father to the children and how could she given his treatment of her. This must be known by Y. The father is in a better place now than he has been for some time. X and Y each benefit from a relationship with their father and paternal family. I cannot say Y’s relationship with his father is meaningful. X’s relationship may be. Even though the father has exposed Y to abuse violence and poor behaviour, Y appears not to have been traumatised by this behaviour and most importantly the supervision order is a significant protection for Y should his father again behave poorly.
I accept that the father is a poor role model for male children. He demonstrates how not to treat woman. He treats woman de minimis, with no or little respect and is physically violently. He harasses and hectors.
The mother is the only parent to provide for these children financially, emotionally, psychologically and educatively. The father has paid very little, if anything towards their support since separation. The wife is the only parent that has put their needs to the forefront. The father’s needs have, throughout the children’s lives, overwhelmed the children’s needs on many occasions.
However on balance Y’s right to benefit from the best relationship he can have with his father and in so doing keep him safe is balanced by the orders the Independent Children’s Lawyer proposes and I will so order.
The time put forward by the Independent Children’s Lawyer, of four to six hours, is a very limited time. The father sought time from 9 to 5 on a Sunday, and given the child’s age that is an appropriate time.
The orders will re-instate the time Y previously had and had enjoyed with his father. Y should be given an opportunity to continue to know his father, and his extended family, who are a most supportive family for whom the father should be most grateful.
The father’s failure to have his mental health issues addressed is significant failing by him and it is his failure and no one else’s. Where he finds himself today lies at his feet and no one else’s feet.
If the father can maintain his positive trajectory and control his behaviours then Y will benefit from time with him and his extended paternal family. This is totally in the father’s hands and no one else’s.
Although some four days of time were taken up with the parenting issues, ultimately this is what resulted. The father agreed to the orders proposed by the independent children’s lawyer.
Going to the property issues. I ask the parties to look at a document from the mother’s affidavit, as to the parties’ assets, and the agreed assets are these:
Agreed Assets
Property B
Joint
$512,500
(omitted) saver account
Wife
$62,797
(omitted) Savings Account
Wife
$3,916
Mitsubishi (omitted)
Wife
$10,000
Household contents
Wife
$4,000
(omitted) Account
(At separation $1,000)
Husband
$3,282
Superannuation
Wife
$70,000
Husband
$78,000
Total
$148,000
The wife has a she has a credit card of a negative $3119. The husband disputed that was a debt at separation. I accept his evidence on this issue.
I will include $1,000 of the Husband's (omitted) Account in the pool as well as $42,250 of matrimonial funds he spent on legal fees post-separation and cashed in (omitted) shares of $3,520.
I propose to take the each party’s superannuation out of the pool. Neither seeks a splitting order and their funds are of a similar amount today.
Looking at the joint matrimonial assets which are agreed, and leaving aside the apartment in (country omitted):
Assets
Property B
Joint
$512,500
(omitted) saver account
Wife
$62,797
(omitted) Savings Account
Wife
$3,916
Mitsubishi (omitted)
Wife
$10,000
Household contents
Wife
$4,000
(omitted) Account
Husband
$1,000
Legal Fees Paid
Husband
$42,250
Cashed in shares
Husband
$3,520
Total $639,983
Rounded up $640,000
In relation to the property in (country omitted), husband asserts that the parties purchased this property, and, not as the wife asserts by her parents via the creation of a factious loan. The property has an agreed value of $98,000.
I have difficulty with both parties’ evidence on this. I accept the property was purchased, in the wife’s name, in (country omitted). However, for the wife to now assert that she owes her parents some $200,000 in relation to that property, when she has never received rent from the property, where no money changed hands from her to her parents for that property, is something I do not accept.
The property is unencumbered and the agreed value is $98,000. The question is, is this property the wife and husband’s or the wife’s parents? The husband’s evidence about moneys taken to (country omitted), drawn out various cash points whilst in (country omitted) in 2001 and 2003/2004 (country omitted) to put towards the purchase of the property, is not accepted by me. At the time this property was purchased, which is in 2004, on the husband’s evidence in his affidavit, the husband had earnt $50,000 during 2002. By 2005 he was earning $36,000 per annum. Between 2005 and 2011 he earned $55,000 per annum.
In 2002 – 2003 the wife received a scholarship of $17,000. The parties were on a very small income. The wife did not recommence full-time employment until 2005. The (country omitted) property was purchased in 2004. It would have been an impossibility for these parties to save $80,000 towards the purchase of the Australian unit in December 2006 and put money towards the purchase of a property in (country omitted).
The issue about rent and who gets rent is neither here nor there. I find this was a property that was in the (nationality omitted) tradition, purchased in the wife’s name by funds of her parents. It may ultimately be her property. It is in her name. I accept the wife’s position no matrimonial funds went into that property.
The husband’s evidence of him paying $10,000 off the joint credit card in 2004 as a means of the wife diverting money to the purchase of the (country omitted) unit at first blush may be plausible given the low cost of a native (nationality omitted) woman living in (country omitted). However the wife was in (country omitted) with X doing her (course omitted) and the husband was supporting his family as well as himself via this card and I do not accept the wife diverted money from the credit card towards the (country omitted) unit.
I regard this unit as her parent’s property.
It is clear that during the marriage and post separation the wife was the primary parent for these children. The husband worked throughout the marriage in the main and only became unemployed in 2012 post-separation.
From 2005 and continuing the wife has worked and has solely supported the children and maintained the home unit she and the children live in.
I find there has been an equal contribution, up to the date of separation, to the acquisition of assets by the parties. They carried out a joint venture as married couples do. The wife carried out the primary role of parent and homemaker whilst completing her (qualifications omitted) in 2005 and then continued to carry out that role as well as earning income when she returned to full time work.
I find the husband and wife contributed all their income to the acquisition, maintenance and conservation of assets and to the support of the family.
The wife carried out more of the parenting homemaker contributions and that contribution continues. I find that the wife’s contribution as parent and homemaker was made far more arduous by the husband’s belittling; hectoring; abuse and poor treatment of her pre-separation and I will allow her 5% for that additional contribution pre-separation.
Thus I find, up to separation, these parties contribution based entitlement is 55% to the wife and 45% to the husband.
Post-separation, which occurred on 9 April 2012 their respective contributions have varied wildly.
Only the wife has maintained the property at Property B albeit she has had exclusive occupation of property. Given that the husband has not paid one cent in child support or any costs associated with his children, such as school uniform, school fees, extracurricular activities, and has left their total financial support to their mother the mother has made the overwhelming contribution to the family and joint assets post separation.
I find that the wife’s sole contribution as parent and homemaker post separation has been made far more arduous by the husband’s belittling; hectoring; abuse and poor treatment of her. The wife’s role as parent and homemaker continued to be made much harder by the husband’s poor mental health functioning and his failure to address that mental health functioning despite admissions to hospital and assessments that he required some assistance in his life.
The wife’s total financial support of the children emotionally, financially, psychologically and educationally, post-separation has been made more arduous by the father’s aberrant and erratic behaviour and I will allow her 10%. This is then 65% to the wife and 35% to the husband.
Looking at the future
The wife’s income is gross $1,839 per week some $95,000 a year from which she supports 3 people, educates her sons and pays all outgoing on the home. The husband supports only himself and his gross income if he continues in his current position is around $800 per week or $41,600 gross per annum.
I am not satisfied that the husband will ever pay support for his children. It is my finding that he will continue to leave that up to the wife as he has done since 2012. Y is only 7 years of age and there are many years to support him. He demonstrated no sense of shame in having failed to support his family. He has no concept that he should support his family and believes the wife living in the home rent free was his sufficient support. He has been working for six weeks yet has not offered to pay one cent towards the mother and children.
Given that Y is only seven years of age, I will award her an additional 10 per cent, having regard to those relevant 75(2) factors. This results in a 75/25 split in the wife’s favour.
Even if the unit in (country omitted) is the wife’s or will come to her given the manner by which it was acquired and the (nationality omitted) culture of properties remaining with families, I do not see it is a resource she will be able to access, to use, to support herself or assist her children, and I would have made no further adjustment to the husband for that asset in the wife’s name had I regarded it as her asset.
What does this result in?
A 75/25 split of the $640,000 is an amount of $160,000 to the husband.
The husband is seized of the following assets: $1,000 he had in the bank at separation, the $42,500 of joint moneys he paid towards his legal fees, and the $3,500 shares he cashed in. That totals $47,000. Taking that from the $160,000 I find is his entitlement results in a payment by the wife, to him, of $113,000 and she will be able to retain the home unit.
I find these orders are just and equitable. I will give the wife 90 days to pay that sum to the husband. I am confident she will be able to either pay that sum from money she has in the bank, and/or raise funds, given her income and her ownership of the property, to buy out the husband’s interest in the home. I find these orders and just and equitable and I will so order.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 12 October 2016
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Family Law
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Property Law
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Contract Law
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Consent
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