TEDD & TEDD
[2021] FamCA 64
FAMILY COURT OF AUSTRALIA
| TEDD & TEDD | [2021] FamCA 64 |
| FAMILY LAW – PROPERTY – where the husband perpetrated significant family violence upon the wife and her son during the marriage – where the husband’s mother advanced the parties a significant sum when initially purchasing their home – where the wife’s parents made financial advancements to the wife and parties during the marriage and post-separation – where the wife is likely to be the sole parent for the parties’ son aged nine into the future – where the husband has the superior earning capacity and superannuation entitlement to that of the wife – where it is unlikely the child and father will be able to retrieve their relationship – wife entitled to 72.5 per cent of the matrimonial property and the husband the remainder – no superannuation splitting order sought. |
| Family Law Act 1975 (Cth) ss 75(2), 79 |
| Bevan & Bevan (2014) FLC 93-572 Coghlan & Coghlan (2005) FLC 93-220 Ferraro & Ferraro (1993) FLC 92-335 Kennon v Kennon (1997) FLC 92-757 Pierce & Pierce (1999) FLC 92-844 Stanford v Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Tedd |
| RESPONDENT: | Mr Tedd |
| INDEPENDENT CHILDREN’S LAWYER: | Holmes Donnelly & Co Solicitors |
| FILE NUMBER: | SYC | 1929 | of | 2017 |
| DATE DELIVERED: | 18 February 2021 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Henderson J |
| HEARING DATE: | 20, 21, 22, 23 January 2020 and 30, 1 December 2020. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | Dettman Longworth Lawyers Barry.Nilsson Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Blackah |
| SOLICITOR FOR THE RESPONDENT: | Jenman Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Holmes Donnelly & Co Solicitors |
Orders
That within 90 days of delivery of this judgment the following is to simultaneously occur:
(a)The wife is to discharge the current mortgage over the former matrimonial home situated at and known as B Street, Suburb C (“the Suburb C property”);
(b)The husband is to transfer his interest in the Suburb C property to the wife;
(c) The wife is to pay the husband the sum of $265,489.
That in the event the wife chooses not to buy out her former husband’s interest in the Suburb C property or is unable to comply with Order 1 herein then the property is to be placed on the market for sale by way of auction at a reserve price agreed, with an agreed agent and failing agreement the following is to occur:
(a)The wife is to nominate three (3) real estate agents to sell the home and the husband is to select one agent within seven (7) days of receipt of the wife’s nominations;
(b)The husband is to select three (3) solicitors and/or conveyancers to conduct the sale of the property with the wife to select one such professional within seven (7) days of receipt of the husband’s nominations;
(c)In the event of a disagreement as to a reserve the parties shall accept the reserve as recommended by the selling agent.
The wife is to have conduct of the sale.
The wife is to provide an authority to the selling agent and conveyancer or solicitor with conduct of the sale that the husband may receive copies of the contract for sale and any relevant document in relation to the progress of the sale.
From the net proceeds of sale the following to be paid:
(a) Mortgage then standing to D Bank;
(b) Solicitor or conveyancer’s costs;
(c) Agent’s commission;
(d) Costs on sale;
(e) 72.5 per cent of the balance to the wife and the remainder to the husband.
The wife is to provide the boat to the husband and he is to sell that boat within 42 days of the date of these Orders and provide to the wife 72.5 per cent of the proceeds of sale with the remainder to himself.
Each party is to keep all other assets in their possession as at the date of these Orders including but not limited to monies in banks, cars and superannuation.
The husband and wife are by Order to sign all documents and give all consents necessary to bring into effect Order 1 to Order 6 herein.
The husband is to indemnify the wife in relation to the loan provided by his mother at the time of purchase of the Suburb C property.
The wife is to indemnify the husband in relation to all monies advanced to her by her parents during and post the relationship.
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 Tedd & Tedd 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: SYC 1929 of 2017
| Ms Tedd |
Applicant
And
| Mr Tedd |
Respondent
REASONS FOR JUDGMENT
The matter of Tedd is an application by the wife for property and parenting orders. The wife sought that X, born in 2011, and aged nine years of age, spend no time with his father. The reality is the child last saw his father in February 2018 and has spent no time with, nor communicated with, him since that time. In relation to property the wife sought the parties’ property at Suburb C (“the Suburb C property”) be transferred to her, and otherwise the parties keep the assets they have.
The husband’s response was that the child commence to spend time with him, and that ultimately the child live with him and spend alternate weekends with his mother. The property orders he sought was that he receive 62 per cent of the net equity in the home, and the wife the balance.
The Independent Children’s Lawyer’s position at the commencement of the hearing supported the mother’s position, unless evidence at trial caused them to reassess their initial position.
Mr Dura of counsel acted for the mother, Mr Blackah of counsel for the father, and Ms Falloon of counsel for the Independent Children’s Lawyer.
It became clear that the father had prepared his own affidavit material. His affidavit was a difficult document to read and was subject to many objections. Further, the orders the father sought indicated a lack of appropriate legal advice. For example, given the fact that X had not spent time with his father, communicated with him, nor seen him for a period of two years, the father’s response that he live with him ultimately was ill-conceived and non-child-focused.
The report of Ms F was seminal in these proceedings. Ms F recommended in her amended Report dated 8 November August 2018 there be no time between the father and child until the father had committed to and carried out certain steps and engaged in significant therapeutic intervention. Unfortunately at the time of trial the husband had not carried out the steps she had recommended.
At the time of the resumed hearing of this matter the parents agreed in relation to parenting and I made orders that X continue to live with his mother and that his father engage in some therapeutic intervention and only if X’s therapist was of the view it was appropriate, that X be involved in that therapy.
The conduct of the husband throughout the relationship is an important matter that I must determine as it was the wife’s case that his poor behaviour and treatment of her has had a negative impact upon her capacity to parent the child and made her role as parent and homemaker far more arduous than it need have been.
The material I read was as follows:
a)For the wife:
i)Initiating Application of the wife filed 27 March 2017;
ii)Amended Reply of the wife filed 3 June 2019;
iii)Affidavit of the wife filed 16 December 2019;
iv)Affidavit of the wife filed 13 July 2020;
v)Financial Statement of the wife filed 16 December 2019;
vi)Affidavit of her mother, Ms G filed 16 December 2019;
vii)Affidavit of her father, Mr CC, filed 16 December 2019;
viii)The Child Dispute Conference Memorandum dated 17 August 2017.
b)For the father:
i)Response to Initiating Application of the husband filed 16 June 2017;
ii)Notice of risk of the husband filed 16 June 2017;
iii)Affidavit of the husband filed 19 December 2019,
iv)Financial Statement of the husband filed 23 December 2019;
v)Financial Statement of the husband filed 20 November 2020;
vi)Affidavit of the husband’s treating psychiatrist, Dr H, filed 16 December 2019;
vii)Two affidavits of Mr J, the husband’s treating mental health social worker, filed 16 December 2019 and 16 July 2020;
viii)The husband additionally sought to rely upon an affidavit of Ms K, who describes herself as a general psychologist. Her affidavit was of no assistance to the Court or the father’s case. Her belief expressed in the report was that men in the Family Court are more prone to commit suicide, and had simply accepted all that the father told her.
The Independent Children’s Lawyer relied upon an affidavit of X’s treating psychologist, Mr L, filed 24 November 2020.
The wife, her parents, and the husband all gave evidence orally as well. In addition, I agreed to allow the husband to file an affidavit of his mother in relation to property issues, namely, whether $100,000, which both parties agreed she had provided to them to assist in the purchase of the former matrimonial home, had been repaid during the relationship or, as the husband asserted, remained outstanding.
There were extensive exhibits, which are as follows:
a)For the wife:
i)Wife’s exhibit 1: The wife’s balance sheet;
ii)Wife’s exhibit 2: The wife’s case outline;
iii)Wife’s exhibit 3: A D Bank Application form for a joint premium home loan dated 12 April 2009;
iv)Wife’s exhibit 4: A drawing of a Father’s Day card from 2015 and a letter from the child X dated 21 January 2016;
v)Wife’s exhibit 5: A copy of a D Bank receipt for the amount of $8,000 dated 23 September 2016;
vi)Wife’s exhibit 6: A written copy of a conversation between the mother and X in relation to living arrangements;
vii)Wife’s exhibit 7: An interview with the child Y, from M School, dated 18 October 2016;
viii)Wife’s exhibit 8: A brochure of DD Services titled”;
ix)Wife’s exhibit 9: Tagged documents from D Bank;
x)Wife’s exhibit 10: A letter from the paternal grandmother to the wife regarding a debt owed to the paternal grandmother dated 4 April 2018; and
xi)Wife’s exhibit 11: The wife’s tax returns of 2020.
b)For the husband:
i)Husband’s exhibit 1: The husband’s balance sheet;
ii)Husband’s exhibit 2: The husband’s case outline;
iii)Husband’s exhibit 3: A list of police reports dated 25 February 2012 to 28 May 2014;
iv)Husband’s exhibit 4: Police report of an intimidation incident dated 28 May 2014;
v)Husband’s exhibit 5: A list of police reports of events dated 21 January 2015 and 3 November 2014;
vi)Husband’s exhibit 6: A list of police reports of incidents dated 30 March 2016 and 5 March 2016;
vii)Husband’s exhibit 7: A list of police reports dated 20 June 2016;
viii)Husband’s exhibit 8: A D Bank account statement for account ending #…31 between 17 June 2014 and 16 September 2014;
ix)Husband’s exhibit 9: An account statement for D Bank credit card account ending #…12 between 21 December 2009 and 20 January 2010; and
x)Husband’s exhibit 10: Affidavit of the husband’s mother sworn 23 January 2020;
xi)Husband’s exhibit 11: The wife’s tax returns of 2009 and Notice of Assessment ending June 2010.
c)For the Independent Children’s Lawyer:
i)Ms F’s amended expert report dated 6 November 2018.
d)There were a number of Court exhibits:
i)Court exhibit 1: Ms F’s expert report dated 31 August 2018, including a Summary of Amendments to Single Expert Report prepared by the mother’s solicitors on 20 January 2020;
ii)Court exhibit 2: Child Dispute Conference Memorandum dated 17 August 2017;
iii)Court exhibit 3: A letter from NSW Police enclosing subpoena material dated 20 December 2019;
iv)Court exhibit 4: A subpoena return document from NSW Police Force dated 30 December 2019;
v)Court exhibit 5: Final consent orders in relation to parenting;
vi)Court exhibit 6: A joint balance sheet.
Chronology
The husband is 47 and the wife is 38.
In February 2002 the husband asserts he purchased two properties in EE City.
The wife’s child from a previous relationship, Y, was born in 2002.
The parties commenced cohabitation in August 2006. The husband was employed as an importer however this business closed in mid-2006.
In late 2006 the husband commenced employment as a transporter with N Company, which ceased in 2007-2008.
The parties married in 2007.
In January 2010 the Suburb C property was purchased by the parties for $750,000 and was funded by a loan of $100,000 from the husband’s mother, $20,000 from the wife’s parents, their savings and a mortgage with D Bank.
The child X was born in 2011. X is 9.
In June 2011 the husband’s employment with Q Organisation ceased.
In 2014 the husband was made redundant from employment at P Company and received a redundancy payment of $10,000.
On 14 February 2016 the husband threatened the wife with a golf club and kicked a chair into Y’s face.
The wife asserts the parties separated in May 2016 following the husband being excluded from the Suburb C property by way of Apprehended Violence Order. The husband continued to enter and reside in the home on various occasions following this incident.
The husband asserts the parties finally separated on 25 December 2016.
In January 2017 the police discovered drugs in the garage of the Suburb C property. The husband was charged with supply of drugs and received a section 12 bond for three months and a section 9 bond for two years.
On 27 March 2017 the wife commenced property proceedings in the Federal Circuit Court of Australia.
In August 2017 a final Apprehended Violence Order was made in favour of the wife which expired in August 2019.
The proceedings were transferred to the Family Court on 7 September 2017.
On 14 February 2018, and before Senior Registrar Campbell, the parties agreed for X to spend supervised time with the husband every alternate Sunday for two hours.
On 31 August 2018 Ms F released the Family Report, which was later amended on 6 November 2018. The initial report was released to the parties on 10 October 2018.
Short synopsis
The husband’s behaviour during the marriage is highly relevant in these proceedings.
The wife has an older child, Y, aged 18, from a prior relationship who lived with the parties during their marriage. He described to Ms F the father’s poor behaviour and treatment of his mother and treatment towards him during the relationship as did X, the parties’ child. The husband’s application that his son live with him and he have sole parental responsibility was misconceived. This child has a significant and validly held fear of his father. It has been expressed to Ms F in the expert report, and to his psychologist, Mr L, in his report.
The husband rejects this evidence, and continued to assert throughout the trial that he was the one who had been subjected to family violence at the hands of the wife, she was the aggressor on all occasions, that he may have at times raised his voice and got angry when he was sorely tested by her, but that she was the controlling, coercive, dominant partner in their relationship, and he and the boys walked on eggshells because of her bad mood, her argumentative style, and flying into rages. The husband’s affidavit and his oral evidence was replete with his view that the wife was jealous of him, thought he was having affairs, and the only way he could explain her aberrant behaviour towards him, witnessed by the children, was because she had an undiagnosed mental health issue.
This explanation gave the husband, perhaps, some comfort and allowed him to justify what is regarded in our society as totally unacceptable behaviour which he perpetrated upon the wife, and at times in the presence of the children. His lack of insight into the consequences of his behaviour, lack of ownership of the responsibilities that he has in this sorry state of affairs, and inability to see matters from anyone else’s position but his own was a significant difficulty for any judge or any therapist in being able to assist the husband to ameliorate his conduct and attitude into the future and thus contemplate him being able to spend time with his son.
It was positive that the husband no doubt assisted by his able counsel, entered into consent orders providing for X to live with his mother and that he engage in therapeutic intervention to retrieve his functioning and attitude towards his responsibility for the sad state of affairs of X not wanting to spend time with him.
The wife’s affidavit is replete with the husband’s poor behaviour and it is quite distressing to read. The wife said, for example, the husband would park his car so close to the door of the premises which was attached to part of their home that her clients could not enter. He would turn the electricity off when clients were there. He would throw clothes down the stairs to block clients entering the premises. He would damage her premises, throw things around, and would come down and cause arguments while people were at the premises. He would speak to her aggressively in front of her clients.[1] He would physically attack her and call her insulting names. The wife says since the husband left the former matrimonial home, clients have returned and the children’s home environment is peaceful.
[1] Affidavit of the wife filed 16 December 2019 paragraph 23.
The police found a locked room in the parties’ garage when they attended the premises at separation on 30 December 2016 after a particularly nasty altercation between the parents. The garage was separated into two areas: the wife’s home business and another room, the half garage with a further smaller room off it. On 30 December 2016 the police discovered drugs at the home in the smaller room off the half garage.
It was put to the wife she knew about this, that this was a joint endeavour and that she, as the husband said in his affidavit filed 19 December 2019, was the one who suggested supplying drugs so that they could earn some income. The wife denied this allegation and I accept her evidence. It is clear to me this was the husband’s endeavour and the only way he could have ever obtained cash to put in his safe, as he said he had at the time of separation, is if he was in some way illegally selling drugs because his income and work history would not support him being able to save cash.
The husband’s assertion that the wife sold drugs through her premises is rejected by me. This was again an attempt by the father to lay blame at the wife’s feet for his choices.
The husband has been arrested 17 times and he denies all, each and every one, of those allegations as being his fault or his problem, and he has defended himself successfully on Apprehended Violence Order (“AVO”) charges in the past save for May 2016 when he was found guilty of violent behaviour towards the wife and he was sentenced to a 12 month AVO order with the children being included on the order as at risk of harm from him and in 2017.
The husband’s work history is patchy. Even from reading his own affidavit of 19 December 2019, he has had eight positions since the commencement of the relationship. Fortunately he has been in his current position since 2015 as a transporter with R Company. The work he undertook previously includes an import business, a transporter in 2006 until 2008 for N Company, a courier for Q Organisation, an assistant for P Company. Further, there were periods of time throughout the relationship where he was unemployed and earning no income.
Thus, his assertions that he was able to save cash during the relationship, for example $1,600 and another $8,000, is only accepted by me on the basis that he was selling drugs. There is no other way that money could have been accrued.
Evidence at the hearing
The parties commenced cohabitation in August 2006 and married in 2007.
They initially separated in May 2016, when an AVO was taken out by the wife against the husband, and both parties believed at that time that the husband was excluded from the former matrimonial home. The reality is that exclusion did not happen until October 2016 and, despite the existence of the AVO in May, it is clear to me, on the wife’s evidence, that the husband returned to the home on many occasions and despite her evidence now that he was not living at the home, I find he was living at that home.
On one occasion in cross-examination the wife said “He woke up one morning in our bed”. This was post the AVO in May 2016. These parties each said they were trying to work on their relationship, trying to keep their marriage together in circumstances where, it should have been clear to each of them, their being together was not only a danger to each of them, but a particular danger to their children, yet neither parent could see that clearly. Each potentially placed the children in significant danger because of their reaction to each other during the relationship. The children were living in a toxic and unsafe environment due to the conduct of the husband and the children have suffered because of the poor state of the parents’ relationship and the husband’s unacceptable conduct towards his former wife.
The wife’s evidence is that the husband perpetrated domestic violence upon her, was coercive, controlling and threatening of her, that she had fled on many occasions with the children to her parents’ home, where she had supportive, caring parents who assisted her and her children and would have let her stay in their home as long as she wanted to.
Y said in an interview with the Department of Communities and Justice at his school in 2016, marked mother’s exhibit 7, “We would go to their house [maternal grandparents’ house] until she [the wife] decided to go back”. Sadly even though the wife had wonderful support from her family, she returned to the former matrimonial home and her husband until the next occasion they had a fight and he behaved in an aggressive and thuggish manner and she would flee to her parents. This is an all too familiar pattern of behaviour in relationships where violence, coercion and control are apparent.
I accept separation is difficult and it is not always a clean break, however when there is such significant violence as was evident in this relationship it is most concerning. This perhaps indicates the level of control the husband exerted over the wife during the relationship.
A final AVO order was made in August 2017 in favour of Y, the wife and X. That order expired in 2019. The wife had obtained an injunction under section 68B of the Family Law Act 1975 (Cth) from Senior Registrar Campbell in April 2019, and therefore did not need to renew her AVO.
At the commencement of cohabitation the parties had some assets: cars and the like; some savings, perhaps. The husband was working as a self-employed importer, but that business failed and I could see no evidence that it earned him much income or provided him with a reasonable cash flow and in so saying I am not being critical.
The wife was working, and there was little evidence of what her income was and she was working in a premises owned by her father. The wife’s evidence that she paid $1,000 per week towards her living expenses in 2006[2] is not accepted by me, and if she was so doing indicates, consistent with what the husband said, that the wife was perhaps living beyond her means. There is no doubt, throughout this marriage the wife’s parents have supported her emotionally, psychologically, physically and financially, and that she has lived beyond her means. Again, this is not a criticism.
[2] Affidavit of the wife filed 16 December 2019 paragraph 12.
The husband’s business failed in 2006. He sold properties he had at Suburb AA and Suburb V, and then he commenced employment with various employers as a transporter. In 2009 the parties commenced to look for a property, and there is no doubt that the husband’s mother provided to them the sum of $100,000. The husband and wife agreed this was money to be repaid and the wife says it has been repaid and the husband says it has not. I accept the wife’s parents’ evidence that they lent her $20,000, which remains unpaid. The wife had some savings at the commencement of cohabitation.
I do not accept the wife received an additional $20,000 from the sale of her business as she asserts. The business was her father’s business, and that may be the source of the $20,000 her parents provided her. They also paid out her car loan of $10,000, amounting to a contribution of $30,000.
The property was purchased for $750,000 and the balance was borrowed by way of a mortgage from D Bank. The wife says that the husband’s mother has been repaid the $100,000, because the husband told her this. I do not accept that evidence. There is no way the husband could have repaid his mother that sum as he was not earning enough money. The parties could not live and support themselves and their children on the income each earned and this is inconsistent with the wife’s evidence, which I accept, of continually borrowing money from her parents to pay for expenses. It is inconceivable on the wife’s own case that they could have repaid his mother $100,000.
Both parties agree that from about the birth of X in 2011 their relationship began to deteriorate. The wife further says that the husband’s behaviour had a significant negative impact on her home business as the premises was attached to the former matrimonial home and I accept this to be true.
The husband commenced working with P Company in December 2011, and he was released from that employment in 2014, and I accept he deposited a redundancy payment of $8,790 into the parties’ joint bank account, not the $10,000 he asserts. The wife’s own evidence was that from mid-2011 her parents began to loan her significant amounts of money to pay for her living expenses, from $1,400 to $2,000 per week. This too is evidence that supports the husband’s position that the parties were living beyond their means.
He was then unemployed in 2011 for six months. He commenced a position with P Company in 2011 until 2014 and was then unemployed for six months until he commenced his current employment with the R Company in 2015. It is impossible that the parties paid back his mother $100,000 in these circumstances where he was earning a limited income and was unemployed for significant periods of time.
The wife alleges that she and her parents paid for the outgoings in relation to the Suburb C property. However there is evidence that the husband also made contributions towards the mortgage, electricity and the like.
The wife’s own income, at its highest, was in 1 July 2014 to 30 June 2015, $32,568. These people had low to modest incomes, and in so saying I am not being critical at all, and a significant mortgage. I accept the debt that the wife owes to her parents, being payment of the mortgage post-separation and living expenses. How much of that is referrable to the husband and payable by him is another issue, for I accept he knew little of this and certainly signed no documents to support a loan. Similarly with the loan to his mother, I accept that a loan was given to the parties but I do not agree that it was repaid and these are matters I will take into account in my deliberations.
I accept that the wife’s father built the premises for her, and that he likely paid for most of the materials for the premises. The documents produced by the husband to support his assertions that he paid for 80 per cent of the materials and the like do no such thing. It was a small amount that was paid by him for goods at a store and the like, and I prefer the evidence of the maternal grandfather on this issue.
The wife says that shortly after X’s birth the husband appeared to lose interest in the family, would come home from work, sleep, watch television, wake up and go to work. Both Y and X say the same thing, in various interviews they have had with health professionals, to Ms F and, for Y, to the Department of Communities and Justice as well.
There is no doubt the wife has been the primary parent and homemaker in the marriage, and has continued in that sole role for X since separation in 2016.
I find that physical separation did not occur until Christmas 2016, despite the wife’s assertions that the husband and she separated in May 2016. They were both still trying to retrieve their dangerous relationship and the husband spent time, including night time, at that home and I do not accept the wife’s evidence she was not aware of this on every occasion. It is consistent with the prior history of their relationship and a relationship where there is domestic violence in that she would acquiesce to him returning to the home to try and work on their relationship despite his poor treatment of her, witnessed by the children.
The wife alleges that the father has been physically abusive to her on multiple occasions particularly since 2011, has assaulted Y by kicking a chair at him in one of their nasty altercations, has yelled at Y, denigrated him, yelled at her, denigrated her, called her names, has yelled in X’s presence, but has never physically hurt X.
The husband successfully defended himself in all the AVOs up to the AVO granted in May 2016.
Fortunately in family law proceedings I am not determining guilt or innocence, rather impact of adult behaviour upon children and other persons in the household. My task is to assess the risk of harm to a child from behaviour of an adult, not whether an adult is guilty of a crime under the criminal code or laws of the particular state. Where, as here, violence is a feature of a relationship, I am tasked to assess the impact of that behaviour upon the party to the marriage who was at the receiving end of the poor behaviour. This is particularly relevant where that party is the primary parent and homemaker as is the case for the wife in this matter.
I accept the wife’s assertions that she found it difficult to make the husband leave the premises after the AVO of May 2016 even though she had a lawyer and supportive parents. However I do not accept this for the reasons she asserts, namely his behaviour alone, rather that the wife wanted the relationship to work. The wife agreed this is what she wanted and told me that this was the case, and I do not now accept a re-creation of her position at that time. The wife may regret her actions at that time in wanting the relationship to work but it is clear she did.
Having so found, I accept there were serious physical altercations between the parents as set out in the wife’s affidavit and being no less than as follows. That the wife wanted her relationship with the husband to work does not in any way impact upon my finding in relation to the husband’s unacceptable behaviour and treatment of her.
The frightening incident with the golf club on 14 February 2016, where the wife woke up to see the husband poised with the golf club above her head and she feared he would hit her, the father kicking a chair and it hitting Y, who witnessed this violent event.
The husband losing his temper over trivial matters such as the wife pouring what she said was spoilt milk down the sink. His reaction was to throw an orange at her which hit her exploded causing her pain and bruising.[3]
[3] Affidavit of the wife filed 16 December 2019 paragraph 61.
I accept that the father called her a “bitch”, a “cunt”, “fat-arse”, “dumb-arse”, said “I hate you”. He wrote abusive text messages to her in 2016: “You’re all a bunch of selfish heartless bastards.”
The husband attended the Suburb C property on 19 February 2017 and I accept the wife’s evidence that by this time he was not welcome on the property. He was dealt with by way of a breach of AVO, convicted and spent six nights in prison.
The wife’s premises was damaged on 19 February 2017. The wife says the husband created damage and the husband said the wife did the damage in a fit of temper. I struggle to accept the wife would damage her own premises, her only income earning asset, and I prefer the wife’s evidence on this issue and find the husband damaged the premises.
I reject the husband’s evidence in relation to the wife being jealous of him. There is no evidence of this at all and I could not discern the basis of any alleged jealousy. This may be an attempt by him to justify his behaviour.
I accept the husband’s evidence that he was most concerned about the amount of time the wife spent with her parents. The wife’s mother’s evidence was that her daughter and the children were very often at the home. I accept the husband found this offensive and it is clear the wife’s parents do not have a good opinion of him as a parent, husband or a person in general. I accept the husband would have said to the wife, “It’s them or me; you have to make a decision.”
The husband tried to involve Y’s father, Mr S, in these proceedings. Fortunately, showing some common sense, Mr S refused. However what has resulted is that this attempt by the husband to bolster his case has caused a fracture in Y’s relationship with his own father and this poor outcome falls at the feet of the husband and the husband only.
In not accepting responsibility for his poor behaviour and defending himself in every AVO that was brought against him, the wife was subjected to cross-examination by the perpetrator of violence upon her, a situation that in the Family Court we are most concerned to avoid at all costs. This would have been traumatic for the wife.
The wife’s evidence of the husband physically assaulting her is confirmed by X’s creative paintings at pre-school in 2016, wife’s exhibit 4, which tell a chilling tale from this young boy’s perspective: X was asked to explain his drawing of his father in a cage to his preschool teacher. He said:
This is my daddy and he’s kicking the door in…because he was trying to get to mummy
His preschool teacher reported that X told her “X told me he drew this to stop daddy hitting mummy.”
I accept that X is fearful of cars which have a loud engine like the father’s. He has expressed repeatedly he does not want to see or spend time with his father, and that he is scared of him.
The mother said the husband would try and strangle her, and her description and her physical reaction to being asked to re-live these incidents in the witness box satisfied me this is precisely how he dealt with her. The fact that the wife wanted her relationship to work, acquiesced to the father returning to the property and at times told police she was not frightened of the husband does change the opinion I have reached that the husband tried to strangle her and was violent to his wife.
Analysing the various exhibits relating to police incidents between the parties.
Husband’s exhibit 3 refers to an incident where the police come to the parties’ home on 6 January 2014:
The [victim] stated she has no fears for her safety or the safety of their children. They have regular verbal arguments and nothing physical. The [victim] confides with a girl friend who is in the police force.
Husband’s exhibit 4 refers to an incident on 28 May 2014 when the police are again called due to an argument between the parties. The wife’s parents had returned from an overseas holiday and the wife took the children to see them on their return. The husband gave her what the wife described as “the silent treatment”, and the parties had a fight. The husband said “You just can’t help yourself, can you?” and the wife replied “Is this because I took the kids to see my parents?” and an argument ensued. The wife rang her mother.
The wife’s mother rang the police because she was concerned for her daughter’s safety. The police attended. The wife told the police she had been assaulted by her husband and she would attend Suburb BB Police Station to provide a statement. The husband was arrested and conveyed to Suburb BB Police Station. Upon providing a statement to the police, the wife said she was now aware she contributed to the actions of the husband, saying she had made him angry, getting in his face, and changed her version of events several times, making it difficult for police to ascertain what had actually taken place. I have no doubt the police entry is correct. It does not mean the husband did not behave poorly towards his wife when clearly he did. Further, the wife saying she contributed to the argument is no justification for a man hitting a woman.
Husband’s exhibit 5: The parties had an argument about the children’s passports on 20 January 2015. The wife is working in her premises and the husband, supporting what the wife says, came into the premises, arguing about passports. The wife’s case in relation to his diminution of her business is well made out by the husband’s own affidavit evidence.
The wife reports the husband stands close to her face, as in the previous incident, and she went to leave by the sliding door and the wife says the husband hit the sliding door so it damaged her hand. The wife re-entered the premises and attended to X, who had heard this event, and gave the husband both children’s passports, which he took.
The police, upon attending the home, observed a small laceration approximately five centimetres long with blood and swelling to the blade of the victim’s right hand. On this occasion the wife said she was scared of the husband, did not want him residing there and, despite this, the husband was not charged, and the police say the reason was that they believed both the wife and the husband were standing in each other’s faces, yelling, in the kitchen. The witness downstairs in the premises verified there was a loud argument taking place but did not observe the incident.
The COPS entry further says:
During the investigation the police believed the sliding [door] was closing prior to the victim placing her hand on the door…as a result the victim has suffered accidental injuries. No intent or malice could be proven.
[…]
[The husband] told police he had been residing at the location on and off since the incident. At no time did the victim contact police regarding [the husband] returning…police could not prove the offence and have a …doubt about the victims’ version.
Husband’s exhibit 6, an incident on 5 March 2016. The wife rang the police and when the police rang back, said she was okay, they had just had an argument about their son and she had overreacted.
Husband’s exhibit 7, an incident on 20 June 2016. Police were called on 20 June 2016, just after the AVO was made in May 2016, excluding him from the premises, but he was on the premises.
Court exhibit 3 is a bundle of the COPS entries which set out the toxic and parlous state of the parties’ relationship and is evidence of the children being subjected to poor behaviour by each of their parents, but particularly the husband and are as follows.
On 3 November 2014 the wife called the police because the husband would not move his car when she had asked him to move it, and had said to her he would not move it until X returned home. X was at his grandparents’ home as the parties had yet another fight the evening before. The wife said she observed the husband get a pair of bolt cutters, and he cut the padlock on the fuse box. The padlock was on the fuse box because the husband had turned the power off to her premises previously and I accept this evidence. This is controlling, coercive and intimidating behaviour by the husband and he had behaved in this fashion previously.
The wife remonstrated with him. The husband threatened her that there was no AVO or anything in place and the wife became scared, and the wife says the husband called her, “dumbass, you stupid bitch. You’re so fucking useless. Look at you, you’re going to be a single mother with two kids from two separate fathers. You’re so pathetic.” An unknown man who was passing the home at the time stood at the top of the drive and called out, “Is everything okay with you?” Upon hearing this the husband ran to this unknown person and said “She’s taken my child.”
This was infantile behaviour by the husband when the wife’s action in removing X from their fight was child-focused and protective behaviour.
The wife says she did not call the police initially because she thought he would get angrier and angrier, something she reiterated in the witness box on many occasions. The COPS notes say that the victim appears to have been intimidated over a prolonged period of time and has long avoided police intervention for this reason.
The husband was charged and arrested in late 2014.
Of real concern is the incident which I will describe as the “golf club incident” on 14 February 2016.
I have no doubt, on this occasion the husband assaulted the wife and Y. Y was involved in this incident and both boys ran out of the home in fear.
The husband said he had been out fishing. The wife did not believe him. His excuse for his subsequent violent behaviour was his wife did not believe he had been out fishing, was in a bad mood when he came home, and she started an argument with him, and events escalated. I reject that evidence entirely.
The COPS entry starts with the husband’s version of events:
At 10.30 Sunday the 14 February [the parties] began to have a verbal argument in the living room in relation to…[the husband] wanting [the wife] to get milk for him.
The husband said he was making a cup of tea, the wife came down into the kitchen and poured the milk that they had in the fridge down the sink, and he asked her why she did it.
He said in his affidavit that the wife threw a bowl of fruit at him.
The husband was pressed in cross examination on this incident. He answered there was fruit going everywhere, that the wife was throwing fruit at him and he did not throw fruit at her. The wife said in her affidavit he threw an orange at her, and it hit her and caused her pain.
I find what happened was as the wife described it to be.
The parties had an argument. The husband grabbed an orange, threw it at the wife from a distance of about three metres, striking her. The orange exploded and she felt pain.
The husband left the premises after this nasty altercation. The wife remained at the premises with her children.
The wife says that the husband returned sometime later. The wife was lying on the lounge, or lying in or around the lounge area. The husband came into the lounge room, picked up a golf club that was in the room and held the golf club above her head, pushed her feet with such force that he spun her around on the lounge and, holding the golf club above her head, said “You need to listen to me, do you want me to use this to hurt you?”
He swung the golf club towards her. He struck the lounge. He did this on two occasions, and he began to place his weight on her so she was unable to free herself. The wife got up eventually from the lounge and moved to sit at the living room table. The husband raised the golf club above his head again and swung it towards her, just stopping before hitting or coming into contact with her face. Y told the police he saw the husband do this at least five times, just stopping the golf club before it contacted his mother’s face. He yelled for him to stop, and the husband kicked a small child’s chair in Y’s direction and it hit Y in the face and it caused him pain. X was about five at this stage.
The wife said to him “You can’t do this. How dare you do that to Y.” The wife pushed the husband out of her personal space. This is a constant theme throughout these police notes of the husband invading her personal space and pushing his face up to hers. This is a further example of coercive, controlling and intimidating behaviour.
The husband bit her thumb. He would not let her thumb go, so she bit his nose. Y had grabbed his little brother and run out the front door, frightened. The wife went to Suburb BB Police Station and both parties gave a statement to the police.
The husband said about this incident and commencing at paragraph 187 of his affidavit that he had been fishing. That she was upset when he returned. He got up to make himself a cup of tea. The wife poured milk down the sink when he was doing this and threw a bowl of fruit at him, yelling at him, accusing him of being unfaithful to her. He tried to stop it because he did not want to upset the kids. The wife assaulted him and hit him hard with something that knocked him out and he blacked out. He says that the wife left with the children, and he saw her return later. He agrees he picked up the golf club, but only for his protection, and he said to her, “Is this the utensil which you used to knock me out with?”
I do not accept the husband’s version of events. Y’s version of events are correct. The police determined this time to proceed as the wife did not withdraw her allegations or say she did not feel threatened. The impeller here may have been that the husband had injured Y and this too is a feature of the behaviour of women who have been subjected to violence, coercion and control throughout a relationship.
The husband was charged with actual bodily harm, and using an offensive weapon. Not only was the wife in fear of her safety, so were her children. This was a disgraceful incident.
On 20 September 2016 the wife had the benefit of an AVO yet, clearly, the husband was at the premises. The COPS entry reports:
On Wednesday the 14 September, 2016, the [husband] punched the [wife] on the right side of her face causing her immediate pain and later bruising around her right eye, this incident was not reported to police on this occasion. As a result of this incident the [wife] left the location with her sons and stayed away from some days out of fear of the [husband].
The police observed:
Skin grazed off left hand fingers, fingermark bruises on right wrist, black bruise on right eye, sore left eye.
The wife left her home, the children’s home, when she had the benefit of an AVO. It is clear the husband intimidated the wife. These injuries perpetrated upon the wife by the husband were observed by the police and the ambulance officers at their home. The husband’s fears, expressed to the police, that if he leaves the home he will lose custody of his child have come to fruition unfortunately due to his behaviour towards the wife, failing to acknowledge his responsibility for his behaviour and its consequences upon his child and Y.
The COPS entries of December 2016 state the wife told the police she heard loud bangs, going on downstairs, and upon investigating she saw the husband pushing things through a hole in the wall that he had made from the half garage into her premises.
That she saw the husband pushing a toolbox through the hole into her premises. It smashed on the ground, damaging a number of her beauty products. He pushed a bag of concrete through the hole, which landed on the ground and went everywhere, and began to throw items from the garage into her premises, again damaging her premises, equipment and beauty products. He had acted in this fashion previously. The husband denies this incident. I accept the evidence of the wife.
On 20 February 2017 the husband writes to the wife on his mobile phone, “Can you call me please?” X spoke to his dad. She receives another message from the husband saying “when will you stop telling lies you piece of shit cunt!!!” again evidence of his demeaning behaviour towards her.
In 2017 the wife became concerned about the husband coming onto the premises and her parents assisted her with putting CCTV cameras around the property. The footage from those cameras show the husband entering the property 13 times and he was charged with breach of AVO. A further example of controlling, coercive and intimidating behaviour by the husband towards his former wife.
In November 2015 the maternal grandfather behaved poorly. He came to the home to collect goods, saw the police were there, began yelling at the police, saying they were not protecting his daughter. The difficulty with his concern was at this time his daughter would not take action against her husband and would not maintain her statements, and without that consistent evidence the police can do nothing. He was clearly under the influence of alcohol and would not admit same in the witness box. I can, however, understand the grandfather’s concern for the safety of his daughter and grandchildren and that even with their support she was unable to stand up to him.
Evidence of Y and X
Y is a witness of truth as is X. I believe entirely Y’s description of the husband’s conduct and behaviour to his mother and to himself often in the presence of X. His statements to Ms F, to the Department of Communities and Justice, are all consistent. He has lived through this.
Y’s evidence with Ms F begins at paragraph 114 of her report. One of the husband’s complaints was that the wife ran Y’s father down to him on every single occasion when Y returned from time with his father which time was alternate weekends. No doubt the husband raised this spurious argument in an attempt to paint the wife in a poor light in relation to supporting his relationship with their son X.
Despite the husband telling me his wife ran Y’s father down, as did her family, Y had a relationship with his father up until a year or so ago when the husband commenced to harass Y’s father about providing an affidavit in these proceedings, no doubt to besmirch the wife. This is the clear timeline.
Y described his mum as nice, and his grandparents as nice. Y’s interview begins at paragraph 114. He was open to being interviewed alone and was reticent to provide negative information about the husband. This is inconsistent with the father’s position that the mother coached him to say negative things about him.
He was 15 at the date of the interview, a difficult age to coach a child, and it is clear from Ms F’s report that she was of the view that there was no evidence of coaching. Ms F further said what Y said to her had the ring of truth. He described his mother as being “really nice”, and the things they do. He said the time he spends with his father was every second weekend, they frequently go camping, their relationship was pretty good, and when asked what his mum says about his dad, he said “they get along and talk when they have to.” He thought his mum wanted him to see his dad, and denied that his mother ever spoke negatively about his father to him.
Mr Tedd was caught out lying, and shifting blame to others when he was entirely responsible.
When asked about Mr Tedd, Y looked down and said he did not have “the best memories” and that Mr Tedd only ever wanted to do what he wanted to do. Mr Tedd would have to control a situation otherwise he would get angry and start yelling, and that it happened pretty much every day. Y said that he got upset by what Mr Tedd was doing to his mum and he tried to get X out of the situation, as he did on 14 February 2016, the golf club incident. Y reported Mr Tedd said mean things to him and told him he would never get past year 2, he was not “smart enough.” Mr Tedd denied this behaviour.
Y said Mr Tedd got angry at least twice a day, he called his mother random things, including “fat”, he fist-punched at her.
Y said the husband had hit him a few times, and recalled the golf club incident, and that when Y said, “Stop it”, the husband kicked a chair at him and it hit his head, and he ran out the door with his little brother and his mum and they went straight to their grandparents’ home.
He recalled an occasion when he had, apparently, scratched a toolbox. He was about nine or ten, and he believed that Mr Tedd had tried to choke him, something I accept he did as he did with the mother.
Y said he is scared of him, does not want to go near him, as he would still be like he usually is and do that stuff again, and he does not want to spend any time with him. He recalled him doing some sport with him for a while, but that was dropped. He would ruin holidays they would have, having a tantrum over “stupid little things”, and everything had to be perfect or he would get angry. Y said he did not want X going near him. He said that the husband could not admit when he was wrong. He always believed he was in the right, and would put things into people’s heads, like telling Y and X that his mother was “the bad one.”
Y’s evidence is at odds with the husband’s sob story in his affidavit of how proud he felt to be Y’s father, and that he had tears in his eyes when Y asked him if he could call him “dad”. Y’s evidence accords with the view I have formed of the husband and his behaviour to others. I found Mr Tedd to be a self-focused, self-absorbed man, demonstrating little capacity to accept responsibility for his significant failings.
When asked in cross-examination whether he was responsible for the escalation of violence on particular occasions he said “Yes, we were. I was responsible, but she started it.” Never once did he accept responsibility simpliciter without argument.
The observation of X and his evidence commences at paragraph 103 of Ms F’s report. As with Y, Ms F found he was open in the interview with no indication of coaching. X thought he was there because his mum and dad were getting close towards the “finish of the fight”. They started fighting when he was three, that that is when he can remember. The husband’s evidence is the parents started fighting almost from the moment of his birth. X said his home environment was “really hard” before separation. He was scared and slept in his brother’s room.
X confirmed that his father shouted at “Y and [his] mummy”, he did something bad to Y when he kicked the chair in his face, and he felt scared because he loves his brother. He became tearful at this and confirmed that his father just shouted at his mother and Y.
He stayed with his father once and they went bowling, but his dad was on the phone a lot. He has felt much better since his dad left the home because he is pretty calm. His dad used to get frustrated when he had to pay bills or do courses, and he would get “really, really angry”, and this could happen twice a day. The only thing he could say he really liked doing with his dad was playing golf. He confirmed what the mother said: X’s father slept most of the day and then went to work. He took him to sport a few times, and then he got angry about little things.
X said his father hurt his feelings because he called his mum names such as “idiot and arsehole”, and X didn’t like to say those words to Ms F, and he felt sad when he heard his dad calling his mum these names. His dad scared him, his mum was nice, his grandparents were nice, and that Mr L was trying to help him about the fight between his parents. He confirmed with Ms F he did not want to see his father really because his father was angry and shouted. He did not want to spend any time with him, even if somebody else was present, because he does not want people he does not know around him.
He knows his dad wants to see him, but he does not want to see his dad. He may when he is older and may make that choice, and he knows now that other people are going to make that decision for him. He knows that his mother does not want him to see his father, but he could choose to. That is his understanding of his mother’s position, and she would be okay if he wanted to see his dad. He knows Y does not want him to see his father, and if he had to go to supervised contact he does not think he would go because he doesn’t know how it would be.
He confirmed, as his mother said, he does not even like the sound of cars like his father’s. X’s evidence is consistent with Y’s evidence and the wife’s evidence.
Even after having read this very sad and truthful account of the husband’s behaviour in the marriage and the impact of that behaviour upon X and Y, the husband could not come to the realisation that he has perpetrated significant family violence on his wife and his children, and he is the root cause of the sad situation they are in which is a child of nine wanting to have nothing to do with his father because he is scared of him and sad at how he treats his mother and big brother.
At the resumed part‑heard hearing, additional exhibits were tendered as follows:
a)Court exhibit 6: a joint balance sheet.
b)Wife’s exhibit 9: tagged documents from D Bank in relation to the parties’ financial position as at the purchase of the property at Suburb C.
c)Wife’s exhibit 10: a note from the paternal grandmother to the wife contained in a birthday card to X, dated … 2018.
d)Wife’s exhibit 11: the wife’s tax return of 2020.
e)Husband’s exhibit 11: the wife’s tax return of 2009 and notice of assessment of June 2010.
The husband asserted in his material that he contributed approximately $30,000 from his own pre-cohabitation resources, and his mother $100,000, to the purchase of the property at Suburb C in 2010.
The evidence he relies upon in relation to this particular contribution is that he owned two properties which he had purchased in February 2002, a property at T Street, Suburb V, New South Wales (“the Suburb V property”), and a property at Z Street, Suburb AA (“the Suburb AA property”). He asserts he purchased the Suburb V property for $166,000 in 2002 and the Suburb AA property for $177,000 in 2002. He asserts he sold the Suburb V property in 2006 for $275,000, and the Suburb AA property in May 2007 for $275,000, asserting a profit was made.
Not one document was produced by him to support this assertion, including bank statements, settlement sheets of the sale of these properties, copies of the mortgages discharged, RPA data search of what a property was sold for, his tax returns for those particular years showing capital gains payable etcetera. Although I accept he had these properties prior to the relationship, the profit he earned from those properties has not been proven to my satisfaction.
Secondly, he sold the Suburb V property in September 2006 and the Suburb AA property in May 2007 and the parties did not purchase their property in Suburb C until January 2010. The husband’s assertion that he maintained moneys in his bank account for a period of over three to four years is as incredulous as the evidence that he put some $10,000 or $12,000 from the sale of these properties into a safe in the home and is rejected by me. He simply made that evidence up as it went along.
These people have struggled financially since the commencement of their relationship. I do not accept the husband had the entire net proceeds of sale of his properties, whatever that may have been, in his bank account for three or four years that he used to put towards the purchase of the matrimonial home. His importing business closed in 2006 and he was without work for some time thus I do not accept his evidence.
The evidence I do accept is that he and the wife each had some savings at cohabitation which, together with moneys from his mother of $100,000, her parents of $20,000, totalled the $120,000 to $130,000, almost the exact amount of money in their joint D Bank account being exhibit 9 of the wife’s exhibits. I accept this money was a joint contribution by them to the purchase of their property from various sources.
The husband and wife made a similar financial contribution at the commencement of their relationship and I reject the submission by Mr Blackah that the husband’s contribution was superior to the wife’s in the absence of any documentary evidence to support the husband’s contention.
The husband is not a witness of truth, however the wife has been less than forthcoming at times. When the hearing re-commenced, the husband indicated he was no longer relying upon his mother’s affidavit which I had permitted him to tender as an exhibit at the prior hearing, being husband’s exhibit 10. The husband asserts his mother has not been repaid the $100,000 she clearly lent the parties, and the wife says she has been repaid.
Towards the end of the hearing, I asked the question:
So the only evidence I have whether this money has been repaid or not is what these parties tell me?
[Counsel for the wife]: Correct.
Mr Blackah, counsel for the father, then renewed his application to rely upon the affidavit of the paternal grandmother which I granted and she gave oral evidence via the telephone. It was difficult for this lady. She did not have the documents before her and the cross‑examination did not ultimately proceed to where it should have, but some oral evidence was taken from her.
She was asked:
[Counsel for the mother]: You don’t have the document with you?
[The paternal grandmother]: No.
[Counsel for the mother]: If I had to ask you right now, what is in your affidavit…?
[The paternal grandmother]: I signed that I wasn’t paid back.
She was asked how it was that she signed the affidavit in January 2020.
The husband’s mother signed the affidavit in Court in January 2020 when this hearing was ongoing. She said she came down a couple of days earlier. She wanted to help. She sat with her son and provided notes to him to put in an affidavit. He wrote out what she said, sent it to the lawyer, the lawyer prepared the document and she signed it. She had no independent conversation with Ms Jenman, the husband’s lawyer. She and her son prepared the affidavit.
She was asked:
Is the discussion you had with your son, him saying he wants you to do an affidavit because [the wife] says you got [repaid] $100,000 and you haven’t?
She responded “that’s right”.
Then she added:
I wanted to clear all that up.
When asked if she had read the wife’s affidavit, the paternal grandmother said:
[The wife said] early in the piece…I was paid back.
She continued:
It’s untrue…[the husband] didn’t pay me.
The husband’s mother said:
I haven’t asked him to repay the money because they had X and were struggling.
A consistent theme in this matter is they were struggling.
The paternal grandmother remembered that she had written a note to the wife and put it in a card she had sent to her grandson X on 4 April 2018, and the grandmother said:
Yes, I did do that. I asked about my son’s time with X.
It then became difficult to cross‑examine the grandmother. She did not have the document that ultimately became the wife’s exhibit 10, being a handwritten note from the paternal grandmother contained in the card to her grandson. The handwritten note says as follows:
Hi Ms Tedd, can you please tell me why, after 12 months, Mr Tedd has not had X [e]very second weekend by now? Last February I ring Mr Tedd, all he said, nothing has change and he had to do courses. Ms Tedd, only $26,000 has been payed back to me, of the $100,000 LOAN for the house deposit at B Street, Suburb C. I hope to hear from you soon.
(As per the original)
The grandmother had said in her affidavit that she had not been repaid any of the money. However from her oral evidence and this handwritten note, which the husband identified as being in his mother’s handwriting, said she has been repaid $26,000. When this inconsistency was put to her she said she had made a mistake.
What I take from this evidence is the following: The maternal grandmother has been repaid some money, $26,000, not, as the wife alleges, $100,000, and the wife’s evidence of repaying the loan is not accepted by me for a multitude of reasons as follows.
The husband and wife were, to use the paternal grandmother’s words, struggling. They were paying $1,000 a week on their mortgage and although each were earning money they would have struggled to pay this mortgage and support themselves and their children on their limited incomes. X refers to his father getting angry when he had to pay bills.
Secondly, the paternal grandmother made a concession that she was in error as to the parties still owing her $100,000 after this note was brought to her attention. The paternal grandmother has lent her son $120,000 all up including two amounts of $10,000 to assist him to pay his legal fees. I accept he has made some repayments to his mother for this money.
Thus, from her point of view when giving evidence, she had not been repaid $100,000 by the parties. However, the husband’s legal costs are his and not to be shared by the parties.
Therefore, I find on this evidence that she has been repaid $26,000 by the parties but is still owed $74,000 and that is a contribution by the husband to the initial acquisition of the Suburb C property, together with what the parties had by way of joint savings, assets, income and the like, and the wife’s parents’ loan to them of $20,000. That is how they made up the 100 per cent required to purchase a property together with paying stamp duty.
It is clear that the wife did not comply with her obligation of full and frank disclosure in that she had not provided to the Court or husband the note contained in X’s birthday card sent to him by the paternal grandmother. No doubt it suited her not to provide this evidence when the paternal grandmother had not filed an affidavit. When the paternal grandmother was permitted to file and rely upon her affidavit and called to give evidence, it suited the wife’s purposes to tender it as an exhibit. I could have rejected this exhibit because it had been in her possession since the commencement of the proceedings and she had chosen not to disclose it. However it is important that a judge has all the facts they can garner before them in making these important decisions for people in financial matters.
The wife’s version of the parties’ relationship and the appalling treatment meted out to her by the husband has been confirmed by her sons. Ms F said in her family report at paragraph 143:
Mr Tedd has not demonstrated a child-focused approach to parenting. He has exposed and subjected both Y and X to severe and chronic family violence, and has therefore placed them at significant risk of harm. It seems likely that both children have developed psychological trauma as a result. X is considered by Mr L to be highly anxious and hyper vigilant about [his father]… [The father’s] inability to consider his role in the conflict and to take responsibility raises serious concern about his insight and capacity to change.
Unfortunately this anxiety and hypervigilance continues from reading the updated reports of Mr L.
This incapacity to accept responsibility is confirmed by his own evidence being the report of the father’s psychologist Mr J whose updating affidavit was also read.
He says in the report annexed to his affidavit of 15 July 2020, at page 4, paragraph 4(c):
Mr Tedd continues to hold opinion he was not the aggressor in the conflicts with Ms Tedd and that he often made attempts to end such episodes.
At paragraph 4(b):
Mr Tedd has been able to reflect on how the dynamic with Ms Tedd may play out in the future and has consistently reported he wishes for a respectful parenting relationship with Ms Tedd, however, he remains convinced that this will not be something Ms Tedd would consider. Mr Tedd has consistently denied being the instigator of physical violence in the relationship with Ms Tedd. He is claiming he was mostly submissive and generally avoidant.
It was Mr J’s opinion that it is unlikely any further gains will be achieved in an individual counselling setting and he needs to attend a Men’s Behaviour Change program. The father has not done so and told the Court that he was not accepted as suitable because he believes he has not perpetrated domestic violence.
However, what Ms F further goes on to say at paragraph 145 of the family report:
Of additional concern is that Mr Tedd has demonstrated antisocial personality traits. Specifically, he has a preparedness to break the law and [bend] rules, as well as emphatically denying responsibility. He has a lengthy criminal history, he has doctored drug laboratory results in the current proceedings [to favour himself] and he continues to claim that all charges pertaining to domestic violence have been dismissed (despite evidence to the contrary). His behaviour suggests antisocial traits that include a willingness to deceive others for his own gain, therefore raising even more concern about the potential influence to X. Without insight and/or a willingness to take responsibility for his actions, it seems most unlikely Mr Tedd will be motivated to seek or sustain genuine change.
The Balance Sheet
The parties’ home is worth $1.5 million. The wife has a motor vehicle 1 worth $12,500, the husband a motor vehicle 2 worth $6,000, there is a boat which the parties have agreed the husband will sell and the wife will make that available to him to sell and they will divide the net proceeds of sale of that boat in accordance with the percentage division of property I will determine is correct.
I will not take into account, as a matrimonial asset for division, the moneys the parties currently have in their bank accounts. It has been four years since separation. That is their money.
They have a current mortgage to D Bank of $553,084 and, most unusual in this matter, the mortgage has continued to be paid on a principal and interest only basis and has reduced since separation by some $70,000, and that contribution has been made solely by the wife via the generosity of her parents.
The wife asserts there is a loan between herself and the husband to her parents of $391,500. That cannot be correct. The husband signed no loan documents, although the wife did enter into a loan agreement in 2018 with her parents.
In light of these facts I reject the wife’s claim that the husband has an obligation to pay this loan. I regard this money as a significant contribution by the wife to the current value of the assets for this money has been used to support the children, maintain the mortgage and other outgoings on the property, rates, taxes and the like and without that assistance this property would have been sold some four years ago and the parties would not have a home double the value of that which they purchased in 2010, some 10 years ago. This is a significant contribution by the wife to the current value of the parties’ assets.
The parties owe the paternal grandmother $74,000. The wife acknowledged that the husband’s mother lent them $100,000 and, unlike the moneys the wife has been loaned by her parents, she was a party to this agreement.
I note the money still owing to the paternal grandmother of $74,000 is almost the same value as the reduction in the principle of the mortgage paid by the wife post separation being $70,000. In these circumstances, where these two contributions from family are virtually equal, I will not have regard to the wife’s post separation contribution to the home and the husband’s contribution to the purchase of the home from these two amounts in my deliberations.
The husband has a moral obligation to repay his mother that money as the wife has to repay her parents the money they have provided her.
They each have superannuation. The husband has approximately $100,000 and the wife some $16,000. Neither seek a superannuation splitting order, and I will take those amounts into account in my final deliberations.
The matrimonial pool for division is as follows.
The home is $1,518,500 less:
a)The mortgage to D Bank of $553,084.
This is a net asset pool of $965,416 noting that the husband has over $100,000 in superannuation and the wife some $16,000.
The parties each own a car although the wife’s car is worth more than the husband’s car, some $6,000. I will not have regard to these vehicles as matrimonial assets for distribution.
I note the husband will sell the boat and the proceeds of sale will be divided according to the division of property I determine each are entitled to.
Going now to an assessment of the parties’ contribution to this asset base.
It is just and equitable and appropriate having regard to the principles enunciated in Stanford v Stanford (2012) 247 CLR 108 and Bevan & Bevan (2014) FLC 93-572, that I embark upon a division of the parties’ property pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”).
Following the well-known principles enunciated in Ferraro & Ferraro (1993) FLC 92-335, Pierce & Pierce (1999) FLC 92-844 and Coghlan & Coghlan (2005) FLC 93-220 I must engage in, being the four stage approach which is to:
i)Identify the matrimonial pool and its value;
ii)Assess the parties’ contribution based entitlement expressed as a percentage for their past contribution to their property both directly of a financial nature, indirectly by energy, effort and/or third party contribution and as parent and homemaker;
iii)Determine whether there ought to be a further adjustment to either party’s contribution based entitlement for their past contribution having regard to their future needs;
iv)Look back at the orders proposed to be made and determine if they result in a just and equitable division of the parties’ assets.
In this matter the Full Court decision of Kennon v Kennon (1997) FLC 92-757 is highly relevant to the facts in my determination. In that decision the Full Court determined that where there is a course of violent conduct during the marriage which is demonstrated to have had a significant impact upon that party’s contribution to the marriage, this is a factor which the trial Judge is entitled to take into account in assessing the party’s respective contributions under section 79 of the Act.
As Justice Baker opined in that decision at [169]:
The incidence of domestic violence in a marriage would generally be a relevant factor when a court comes to assess contributions…for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.
The orders I propose to make acknowledge each parties’ contribution to their assets during the marriage having regard to the matters under section 79 and 75(2) of the Act and the impact upon the wife’s contribution to the marriage and its assets having regard to the serious domestic violence, coercion and control perpetrated by the husband against her.
I find at the commencement of cohabitation in 2006 although the husband owned two investment properties, he sold one property prior to the marriage and one after the marriage in 2007, and three to four years prior to the purchase of the Suburb C home.
In the absence of documentary evidence I find that those moneys were used by the parties to buy a boat, fund their lifestyle, pay for rental of the property and perhaps commence the kernel of their savings with ANZ bank which savings were ultimately transferred to a joint D Bank account when they obtained a mortgage with that bank.
The wife was working in her father’s business and had very few assets of any significance. The husband did have significantly greater resources than the wife, however I have been unable to ascertain the true value of those resources due to his failure to provide me with sufficient information to support same, and his argument that all these documents were at the matrimonial home is not accepted by me. There has been no request for these documents to be produced and there were other ways of obtaining this information, given these were assets in the husband’s name.
The injection by the husband’s mother of $100,000 into the acquisition of the property is a significant contribution by the husband and was more than 10 per cent of the purchase price of the property. There is still $74,000 owing to the paternal grandmother from that initial injection however that figure and the reduction by the wife’s parents of the principal of the home mortgage by $70,000 are of such a similar compass that I am not taking these two specific contributions into account in my deliberations.
I find the husband’s contribution to the initial acquisition of the property was superior to the wife’s.
Going to the period of the marriage. I find each of the parties equally contributed their income to their assets and their family during the marriage, and that the husband did support the wife’s son Y who was not his child.
I accept the wife’s evidence that the husband had significant periods of unemployment in excess of 12 months throughout the relationship of some 10 years. At those times the wife supported the family with the generous assistance of her parents.
It was churlish of the husband to not acknowledge this significant support by his former in-laws to his home and his child. It is apparent to me on the evidence that despite their best efforts the parties could not afford the home they had purchased, and they needed help and the wife’s parents were the ones who helped them.
I reject any assertion by the husband that the wife had anything to do with the sale of drugs. He carried out that activity, pleaded guilty to a charge and has been sentenced accordingly. I accept money he earned from that illegal activity may well have been used by him, at times of unemployment, to pay for family outgoings.
Even on his own evidence, the husband’s lack of work for significant periods and drop in income when he ceased working for N Company where he was earning $1,000 per week and commenced working for Q Organisation for $38,000 per annum would have placed further financial strain on these parties and the wife’s parents made up the difference.
I find the wife was and continues in her role as the primary parent and homemaker, and that the husband used the income he earned when working towards the support of his family.
The wife’s father was seminal to the wife earning her income, he being a builder, in creating business premises at the home from which the wife worked. As a builder, he did other work around the home and it did not assist the husband’s case to dismiss the non‑financial and direct contributions the wife’s parents made to the ultimate value of the property at Suburb C.
Additionally, there is no doubt that the husband’s violence, controlling, coercive and intimidating behaviour towards the wife and her son Y made her role as parent and homemaker far more arduous than it need have been. He perpetrated significant violence upon the wife, she having to flee the home with the children on multiple occasions and he interrupted her business on multiple occasions including physically damaging her premises. On those occasions her father repaired the premises so that the wife could continue to earn her income.
Taking into account taking into account the following:
a)The contribution by the husband’s mother which was a significant part of them being able to acquire this home;
b)The wife’s parents’ contribution in assisting the parties to maintain the home at times when they would have struggled so to do;
c)The husband’s violence and poor behaviour towards the wife and her son Y;
I find the wife’s contribution based entitlement to be 55 per cent and the husband’s 45 per cent.
It is very important that I now look at the contribution based entitlement post‑separation, for it has been four years. The wife’s contribution to the assets of the marriage and the child post‑separation has been overwhelming to that of the husband. Without the assistance of her parents, this property would not have been maintained and the parties would not have an asset today worth $1.5 million. The wife has paid all the outgoings on the property.
The wife has solely, emotionally and physically supported the parties’ child X and the husband has entered into, to his credit, orders that provide for him to have no time with the child, only that the parties engage in family therapy and then if they agree and the therapist agrees, X may be involved.
The husband’s behaviour towards the wife has had a serious impact on his son’s emotional wellbeing and this has been a significant parent and homemaking factor that the wife has singlehandedly, again with the assistance of her parents, carried out. The wife has provided her son with ongoing psychological support from Mr L, ensured he is protected, attended to his needs and particularly his sensitivities and emotional fragility due to what he observed was his father’s violent and unacceptable behaviour to his mother during the relationship.
Those two factors combined, the financial contribution made by the wife in maintaining the property and her overwhelming sole parenting and homemaking contribution to the parties’ child, I will allow her an additional 10 per cent for her post‑separation contributions which results in 65 per cent to the wife and 35 per cent to the husband.
Going now to the future needs. The husband earns twice the wife’s income, and he earns $75,000 per annum. Her best income has recently been some $30,000 a year. The husband has been in this job for a significant period of time and is probably one of his most stable employment periods ever as a transporter with R Company. He has superannuation which is $108,000. The wife has $16,782. His superannuation is six times that of the wife. The wife will never achieve the superannuation levels the husband will achieve with his higher income.
The wife will continue to have the sole care and responsibility for X for I am concerned that he will never be able to retrieve his relationship with his father, sadly for him and for the husband. However until the husband acknowledges and accepts responsibility for his appalling behaviour towards his wife, the controlling, coercive behaviour both X and Y speak of, it will be unlikely that the family therapy can move forward or that the father will ever retrieve a relationship with his son.
Mr Dura submitted that the wife’s 75(2) factors under the Act were some 7.5 per cent. I accept this submission and find her contribution based entitlement to the parties’ assets is 72.5 per cent and the husband 27.5 per cent.
The wife seeks to buy out the husband’s interest in the matrimonial property and I will give her an opportunity so to do.
The net assets for division are the net value of the former matrimonial home of $965,416.
27.5 per cent of this net equity is a payment to the husband of $265,489.
I will give the wife 90 days to pay this sum to the husband and discharge the current mortgage on the property so that he is mortgage free.
If the wife is unable to refinance the property and pay out her husband then the home is to be sold and the net proceeds of sale to be divided 72.5 per cent to the wife and 27.5 per cent to the husband.
The parties will indemnify each other in respect of the monies owed to their parents.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 18 February 2021.
Associate:
Date: 18 February 2021
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Remedies
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Fiduciary Duty
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Duty of Care
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Damages
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Jurisdiction
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Procedural Fairness
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