Thorpe & McGregor

[2008] FamCA 927

FAMILY COURT OF AUSTRALIA

THORPE & MCGREGOR [2008] FamCA 927

FAMILY LAW – CHILDREN – with whom children should live and spend time – where husband participated in proceedings initially – where proceedings ultimately proceeded undefended following husband’s failure to appear – history of violent behaviour by husband towards wife, including in presence of the children – poor relationship between husband and children – presumption in s 61DA not applicable – shared parental responsibility inappropriate – in children’s best interests to make orders as sought by wife – children to live with wife – husband not to spend time or communicate with children

FAMILY LAW – PROPERTY SETTLEMENT – determination of asset pool – treatment of significant initial contribution by husband – 10% adjustment to wife on account of s 75(2) factors – wife to receive 45% of asset pool

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 75(2), 79

Pierce v Pierce (1999) FLC 92-844

APPLICANT: Ms Thorpe

RESPONDENT: Mr McGregor

INDEPENDENT CHILDREN’S LAWYER: Julie Redman

FILE NUMBER: ADF 1949 of 2005

DATE DELIVERED: 22 October 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self-Represented

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr D.J. Childs

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Alderman Redman Lawyers and Mediators

Orders

AND UPON NOTING:

(a)That the wife intends to attend a parenting programme to assist her in caring for the children;

(b)Counsel for the Independent Children’s Lawyer and/or the Independent Children’s Lawyer and the wife will discuss the best method of informing the children about these orders and that the decision has been made by this Court.

IT IS ORDERED THAT

1. All previous children’s orders, including but not limited to any Airport Watch List orders and any injunctions restraining the wife from removing the children from Australia or moving the children from P are discharged.

2. The wife have sole parental responsibility for the children C born on … September 1996, J born on … April 1998 and N born on … October 2000.

3. The children live with the wife.

4. The husband does not spend time with or communicate with the children.

5. The husband is restrained and an injunction is granted restraining him from:

   (a)being on premises at which the wife resides or works;

   (b)contacting, harassing, threatening or intimidating the wife or any of the children in any manner including but not limited to writing, telecommunication device or telephone or otherwise;

   (c)approaching or attending at the school attended by any of the children.

6. The wife forthwith confer with the Child & Adolescent Mental Health Service (CAMHS) and follow recommendations of CAMHS about counselling for the children.

7. The wife is restrained and an injunction is granted restraining her from changing the principal place of residence of the children from Australia.

8. The appointment of the Independent Children’s Lawyer is discharged at the expiration of three [3] months from this date.

9. Within two [2] calendar months from the date of this order the husband pay to the wife the sum of EIGHTY THOUSAND NINE HUNDRED AND FIFTY DOLLARS [$80,950.00].

10. Until the husband complies with paragraph 9 and subject to paragraph 11 the husband is restrained and an injunction is granted restraining the husband from selling, transferring, encumbering, mortgaging or otherwise dealing with his interest in the property at S, in the State of Western Australia.

11. In default of payment of the said sum as described in paragraph 9 hereof the property situated at S, in the State of Western Australia, being the whole of the land in Certificate of Title … be sold on such terms as the parties may agree and in default of agreement as determined by this Honourable Court and from the net proceeds of sale the wife is to receive such sum as shall then be outstanding pursuant to paragraph 9 hereof together with interest thereon calculated at the rate fixed by the Family Law Rules and the husband shall receive the balance.

12. The parties do all acts and deeds and sign all such documents that are necessary to give full force and effect to the terms of this order PROVIDED THAT if either the husband or wife shall refuse or neglect to execute a document necessary to give such force and effect to this order within seven [7] days after the same shall have been tendered to him or her for that purpose then in such case a Registrar of the Family Court of Australia upon proof of such refusal or neglect is hereby appointed to execute and if it is in his or her opinion necessary to do so to settle the same and to do all such acts deeds and things as shall be necessary to give full force and effect thereto and shall execute the same accordingly.

13. The parties otherwise retain as their sole property absolutely free of any claim, demand, interest, right or entitlement of the other of them:

    a.all other items of real or personal property currently in their possession or control;

    b.their respective entitlements to superannuation.

14. Each party has liberty to apply for consequential orders in relation to the property settlement orders made.

15. Remove all matters from pending list.

IT IS NOTED that publication of this judgment under the pseudonym Thorpe & McGregor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1949 of 2005

MS THORPE

Applicant

And

MR MCGREGOR 

Respondent

EX-TEMPORE EASONS FOR JUDGMENT

1. The proceedings before this Court between the husband Mr McGregor and the wife Ms Thorpe relate to children's issues and financial matters.  The three children of the marriage are C, who was born in September 1996 and is now aged 12, J, who was born in April 1998 and is now aged 10, and N, who was born in October 2000 now aged eight.

2. Proceedings took place over a considerable period of time.  There have been proceedings between the husband and the wife in the Federal Magistrates Court and the Family Court of Australia for years.  Various orders were made in the Federal Magistrates Court in 2006, concerning the children.  The matter was designated a Magellan matter in early 2007.

3. The pre‑trial conference and directions hearing before the Magellan judge were held in March 2008, when it was estimated that the final trial would occupy six days.  The trial commenced before me on 14 April 2008.  Both the husband and the wife were unrepresented.  Mr Childs appeared as counsel for the Independent Children’s Lawyer, Ms Redman.

4. Five days of hearing in April were taken up with the evidence of the husband.  His cross-examination had not been completed.  Various procedural orders were made at the conclusion of that five days, and, due to listing arrangements, the trial was adjourned to resume on Monday, 13 October, with eight days set aside to conclude the children's and financial proceedings.

5. The husband did not comply with any of the procedural orders made by me on 18 April 2008, even though he was given extensions of time for compliance by the registrar.

6. When the trial resumed before me on 13 October 2008 there was no appearance by or on behalf of the husband.  At my direction, Court staff telephoned the husband.  At my direction, the husband was given the opportunity to appear by telephone that day, to explain his position, because the Court was informed he was in Alice Springs.

7. For reasons I have given on 13 October 2008 I proceeded to hear the wife's proceedings on an undefended basis.  The husband listened to the proceedings on the first day.  Subsequently, he did not seek to listen to the further days.  I then proceeded to hear the evidence of the wife in chief and under cross‑examination by counsel for the Independent Children’s Lawyer.  I also heard the evidence of the psychologist Mr F.

8. I then heard final submissions of counsel for the Independent Children’s Lawyer on children's matters and the wife's submissions on children's matters, before I released the Independent Children’s Lawyer's counsel.  Subsequently I heard oral evidence of the wife on financial matters, before reserving my decision on 15 October.

LAW

1. Even though the proceedings before me became undefended, due to the non‑attendance of the husband, the provisions of the Family Law Act1975 (Cth) require that the orders made by the Court are in the best interests of the children and that the final property settlement orders are just and equitable. (I refer to section 60CA and section 79 of the Family Law Act.)

BACKGROUND AND CHRONOLOGY

1. The history of the relationship between the parties as described by each party is disturbing.  Both versions, which differ considerably, describe a dysfunctional relationship, with serious incidents occurring over a considerable part of the children's lives.  It is not necessary to recite each incident.  The husband alleged the wife abused the children physically and was not capable of caring for them.  The wife alleged the husband had assaulted her on occasions, threatened to kill her, and that the children had witnessed the husband's violent, abusive behaviour. 

2. The husband was born in 1946 and is now aged 61.  The wife was born in 1970 and is now 38.  The wife was born in the Philippines.  The parties met in Hong Kong in 1993.  The husband and wife moved to Western Australia in 1995 and were married in October 1995. 

3. C was born in September 1996, J in April 1998 and N in 2000. 

4. The family moved to O in South Australia in 2002.

5. The parties separated and reconciled on occasions, in 2002 and 2003 (when they lived in P), before returning to O in 2005.  Again the parties separated in August 2005 but reconciled in early 2006.  The parties have been separated since early 2006; either January or March 2006.

6. In July 2006 the mother commenced a relationship with Mr K in O.

7. From time to time the children have resided with either the husband or the wife, either because of arrangements that have been made between them or due to interim Court orders made in the Federal Magistrates Court or this Court.

8. Child protection workers have been involved with the family over the years.  Documents produced to the Court indicate that Families SA workers have concluded that the children have suffered emotional abuse as a result of observing the domestic violence. 

9. There is an indefinite restraining order made in the State Magistrates Court which provides that the order lasts for an indefinite time, from 6 November 2007.  The protected persons are the wife, C, J and N.  The defendant, who is the husband, is restrained from being on premises at which the protected person resides or works, and the husband is also ordered not to contact, harass, threaten or intimidate the protected person, or cause or allow another person to contact, harass, threaten or intimidate the protected person, whether in writing, by telecommunication device or otherwise.  The husband is also restrained from damaging property of the protected person, or causing or allowing another person to damage the property of the protected person.

10. Those orders are also subject to a condition that, notwithstanding any condition of the order, the contact between “the defendant” is permitted pursuant to any order or direction of the Family Court or other Court exercising jurisdiction under the Family Law Act, whether in respect to counselling or otherwise.

11. The Magistrates Court domestic violence order is still in effect.

12. In late 2006 the Federal Magistrates Court orders permitted the wife and children to leave O.  The wife and children have, since then, resided in P.  The three children have attended C School since February 2007.

13. The Minister for Families SA was invited to intervene in these proceedings because the matter was designated a Magellan matter.  However, the Minister declined to intervene in these proceedings.

14. Interim orders were made by his Honour Burr J, and subsequently by me, which provided that since about December 2006 the husband was to have only telephone communication with the children.

15. At the adjournment of the trial, orders were made permitting the wife to record the telephone conversations between the husband and the children.  The last occasion of telephone contact or communication between the husband and the children took place in late June or early July of 2008.  The last time the husband was in the presence of the children was when the Family Consultant, Mr T, observed interaction between the husband and the three children on 17 January 2007.  (See Mr T’s report dated 18 January 2007.)

16. Prior to that date the Independent Children’s Lawyer had arranged an assessment by the psychologist, Mr F, who conducted interviews, assessments and observations in November and December 2006.  These observations form part of his first report of 18 December 2006. 

17. In June 2007 Mr F again conducted assessments and interviews with the children.  The husband did not participate in this process, so the updated assessment did not involve further interviews with either the husband or the wife.  Mr F provided his further report dated 3 July 2007.  He was called by the Independent Children’s Lawyer to give oral evidence at the conclusion of the trial in October.

ASSESSMENT OF EVIDENCE

1. The husband gave oral evidence.  He was cross-examined at length in April this year.  He denied the wife's allegations of violent, abusive behaviour.  He accused the wife of abusive behaviour towards him and the children. 

2. The wife gave oral evidence.  She was cross-examined by the Independent Children’s Lawyer's counsel.  This cross-examination required the wife to recount, without reference to documents, a significant incident of violent behaviour by the husband.  Her evidence was substantially in accordance with her earlier affidavit evidence on this topic.  Her consistent oral evidence, particularly under cross-examination, convinces the Court that the facts alleged by the wife are to be preferred over the evidence of the husband, particularly the evidence concerning the husband's violence towards the wife, which, at times, occurred in the presence of one or more of the children.

3. The independent evidence of the psychologist Mr F provides assistance to the Court.  I rely upon the psychologist's report and his unchallenged assessments and conclusions.  His oral evidence confirmed and expanded upon his earlier findings.  I accept and rely upon this oral evidence.

CHILDREN'S ISSUES

1. The wife asked the Court to make final orders that the children live with her, that she have sole parental responsibility and that there be no orders for the husband to communicate or spend time with the children.  She asked that the orders be made allowing her to have holidays overseas.

2. The Independent Children’s Lawyer supported these orders being made, with some consideration being given to the possibility of arrangements which would allow the husband to communicate with the children in writing, if the communication could be vetted by a reliable independent person.

APPLICATION OF PRINCIPLES

1. The Court is required to follow the principles set out in the Family Law Act, section 60B, section 60CA and section 60CC:

   60BObjects of Part and principles underlying it

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)to develop a positive appreciation of that culture.

60CAChild’s best interests paramount consideration in making a parenting order

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

60CCHow a court determines what is in a child’s best interests

Determining child’s best interests

(1)       Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

Additional considerations

(3)Additional considerations are:

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(b)the nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f)the capacity of:

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

(j)any family violence involving the child or a member of the child’s family;

(k)any family violence order that applies to the child or a member of the child’s family, if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)any other fact or circumstance that the court thinks is relevant.

(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

(4A)If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

Consent orders

(5)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

Right to enjoy Aboriginal or Torres Strait Islander culture

(6)For the purposes of paragraph (3)(h), an Aboriginal child’s or a Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)to maintain a connection with that culture; and

(b)to have the support, opportunity and encouragement necessary:

(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)to develop a positive appreciation of that culture.

1. The most significant of the primary considerations in this matter is the requirement that the Court consider the benefit to the children of having a meaningful relationship with each of the parents.  In this case this is a matter which requires serious consideration.

2. The evidence of Mr F, in his reports and in his oral evidence, provides the Court with unchallenged evidence that the relationship which the children currently have with the husband, and which they are likely to have with the husband in the future, would not be one which would benefit the children.

3. I accept the evidence of the wife about the abuse by the husband in the presence of one or more of the children.  I refer to Mr F’s assessment of the husband's attitude to the children, where he discussed that the husband was treating the children as objects for the purpose of causing harm to the wife.

4. The evidence establishes that the husband's past behaviour towards the wife creates a need to protect the children from psychological harm that might be caused by them being subjected to psychological and emotional abuse.

5. I turn to consider the additional considerations.  Amongst the first of these is subsection (a), the views expressed by the children.  The views of the children are discussed by Mr F in his reports.  Over time, these views have varied widely.  The evidence indicates that the children have been interrogated and influenced by both parents.  The weight to be given to their views must therefore be considered carefully. 

6. The children have more recently said that the wife no longer smacks them and that they prefer to live with her. 

7. The recent recorded telephone conversations between the husband and the children strongly support the assessment of Mr F about the husband's poor relationship with the children and give weight to the children's current view that they not have contact with the father.

8. Subsection (b), the nature of the relationship between the children and each of the parents.  I accept the evidence of the wife that she has a loving relationship with each of the children and that they have a good relationship with her friend Andrew. 

9. The evidence of Mr F in his reports and his oral evidence establishes that the nature of the relationship between the husband and the children is not a good one.  There are significant parts of his report and Mr T’s report that could be incorporated in these reasons.  In particular, in his first report by Mr F, at page 20, towards the end of that page at about point 8, Mr F says, after conducting assessments of the husband:

   “Thus, it is very noteworthy that [the husband’s] MCMI-III results reveal low scores for (self-) Disclosure and (self-) Debasement, and high scores for Desirability.  [The husband] works very hard to mask his underlying anger towards others; however, his inability to cope with stress soon breaks down his facade of compliance and leads to overt aggressive conduct towards others.”

10. Later in that report, at page 21 at about point 5, Mr F states:

    “Thus, these results are consistent with the MCMI-III findings of an avoidant and compulsive personality style that reveal that [the husband] works hard to mask a deep-seated, underlying anger.  [The husband’s] STAXI-2 results are consistent with the MCMI-III finding that [the husband’s] personality structure is characterised by an avoidant and compulsive personality style that is characterised by a deep-seated anger that occasionally breaks through his impression-management controls and is displayed as aggression towards others when he is stressed or restrained.”

11. Similarly, at page 22 at about point 3, Mr F observes:

    “[The husband] spent a considerable amount of the observation session”

    (this is the observation session with the children -)

    “…talking about [the wife] in a negative and denigrating manner.  He seemed to have no concern that the children could clearly hear what he was saying about [the wife].  On several occasions, [the husband] looked towards the children as he spoke about [the wife] in negative and denigrating ways.  The children did not react in any observable manner as [the husband] spoke in demeaning ways about their mother.”

12. Further, towards the end of the first report at page 27, under the heading Summary and Conclusions, and the benefit to the child of having a meaningful relationship with both of the child's parents, Mr F says:

    “As is the case for most children, there is nothing inherent in the personalities of the [three] children that would suggest that, ideally, they would not benefit from having a meaningful relationship with both of their parents.  Nevertheless, the writer is concerned that the children may be particularly at risk of being psychologically disturbed and harmed by their relationship with [the husband].”

    His justification for those concerns is set out further in that report.

13. On page 28 of the first report Mr F says:

    “The writer is very concerned that the children's relationship with [the husband] and [the wife] are quite likely to have been significantly influenced by [the husband’s] words and actions, and that they have been influenced by [the husband] in a direction that is consistent with [the husband’s] interests rather than the children's best interests.  The writer is further concerned that [the husband] has manipulated the children to turn their affections away from [the wife] and toward himself.”

14. Subsequently there was an observed interaction between the children and the husband, which was observed by Mr T.  In his report of 18 January 2007 Mr T concludes:

    “Given the very limited scope of this assessment, only the most limited conclusions can be drawn, viz 

    ·When interaction between the children and the father is activity based and/or emotionally neutral, there is significant warmth and affection from which the children can benefit. 

    ·Even in the controlled environment of supervision by an officer of the court, [the husband] consistently placed subtle but significant emotional pressure on the children.  Each responded with an individual form of withdrawal, and, in [C’s] case, by attempting to assume responsibility for caring for her father, a task she is not developmentally equipped to handle.  This pressure can clearly compromise the children's emotional and psychological wellbeing. 

    ·[The husband] demonstrated no awareness of the impact of his actions on the children.”

15. In the final report prepared by Mr F, which is dated 3 July 2007, Mr F says on page 10:

    “It is the writer's opinion that [the husband] has continued to maintain the dysfunctional and maladaptive attitudes and behaviours that he had at the time of the writer's previous report.”

    And there he refers to the report of 18 December 2007. 

“[The husband] represents a significant threat to the psychological well-being of the [three] children.  [The husband] consistently places his own interests before the well-being of his children and does so in a manner that threatens to undermine the psychological well-being of his children.”

1. His oral evidence was that, after considering the further material provided to him by the Independent Children’s Lawyer, (being the recordings of telephone conversations between the children and the parents), the father was using this communication to gather evidence against the wife and was taking them through an intimidation process.  Mr F said he was very concerned that the husband was teaching the children conditional love; that they must conform with his wishes, otherwise he will not love them.  Mr F also said that the recent telephone conversations did not indicate any change by the father.  He emphasised that the father's behaviour and attitude were not beneficial for the children, indeed were harmful.

2. I turn now to consider subsection (c), the willingness and ability of the parents to provide for the children.  The wife clearly is not willing to encourage any relationship between the husband and the children.  The husband denigrates the wife and appears unable to encourage a close and continuing appropriate relationship between the children and the wife.

3. The husband's ability is severely hampered by his personality disorder as assessed by Mr F.  In my view, therefore, the willingness of both parties to encourage a relationship with the other parent is a matter which is significantly affected by other factors such as the wife's fear of the husband and the poor influence the husband has over the children.

4. Subsection (d), the likely affect of any changes upon the children.  I accept the evidence of the wife that, to a certain extent, the children are settled at school and, save for the concern about spending time with the husband, have settled down emotionally. 

5. The evidence of Mr F suggests, also, that any order requiring the children to spend time with the husband would be unsettling and detrimental to the children.

6. The wife is seeking an order that allows her to leave the P area.  I accept that this will be, to a certain extent, unsettling for the children.  There is, however, a  need to balance that against the benefits to the wife and the children of being free to make choices of lifestyle and where they live.

7. The husband has other children from previous relationships.  However, this is not a factor which is of great significance in this matter.  The injunctions restraining the husband from spending time with the children will not affect the mother's capacity to agree to make arrangements, if appropriate, for the children to meet and enjoy the company of their step-siblings where appropriate.

8. Subsection (e), the practical difficulties and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.  The wife currently resides in P, although she may move, to advance her prospects and the children's prospects.  The husband has property in O and in Western Australia.  There is no reliable evidence about the husband's future intentions about where he proposes to reside.  There are considerable practical difficulties in arranging communication between the husband and the children in a way which protects the children, psychologically and emotionally.

9. There appears to be no independent suitably trained and funded organisation or person available to the parties to provide long-term expert assistance to vet any correspondence between the husband and the children.  I have given careful consideration to this possibility but, due to the lack of any reliable information concerning how this would be conducted without placing unnecessary stress upon the wife and the children, I regret to say that it does not seem possible to provide the children with this ongoing, safe contact with the husband.

10. I turn to consider subparagraphs (f) and (i), which relate to the capacity of each of the parents and the attitude of each of the parents to their responsibilities of parenthood.  The husband is on a disability pension but also moves around Australia looking for work.  He pays very little child support.  The wife works to provide for herself and the children.

11. I accept the evidence of the wife that she has benefited from advice received during these proceedings.  She recognises that her previous behaviour towards the children, such as smacking them and yelling at them, was not appropriate.  She has assured the Court that this inappropriate behaviour has ceased.  The wife offers to attend a parenting course, to assist her in her ongoing role as carer for these children.

12. The husband's evidence, his behaviour during telephone calls, his behaviour during supervised interaction with Mr T and the evidence of Mr F, convinces me that the husband does not have the psychological or emotional capacity, nor the appropriate attitude, to provide for the children's needs.  Mr F’s evidence strongly recommends that, to protect the children emotionally and psychologically, they should not be required to spend time with, or communicate with, the husband.  I accept and rely upon Mr F’s evidence.

13. Subsections (j) and (k).  I accept the evidence of the wife about the violent behaviour of the husband.  The restraining order made, which is exhibit 13, protects both the wife and the children.  It does not, however, extend to protecting the children from psychological abuse which might arise should the husband attend their school.  I consider, therefore, that such an appropriate order should be made.

14. Subsection (l), whether it is preferable to make an order which will finalise proceedings.  It is usually my view that it is preferable to make an order which restricts further proceedings.  It will assist the children if the wife is no longer involved in these proceedings. Their psychological and emotional development will benefit.

15. I also consider the factors set out in subsection (4).  I accept the evidence that the children have not telephoned the husband since the end of June 2008 or early July of 2008, notwithstanding the Court orders.  The wife says that the children did not want to telephone him.  Having heard the recorded conversations, their attitude is explained by the husband's behaviour.

16. The presumptions of section 61DA, concerning shared parenting, do not apply in this case, because of the findings I have made about the family violence and the emotional abuse of the children by the husband.

17. In the absence of any ongoing cooperative relationship between the husband and the wife, the wife's fear of the husband, and the history of violence and abuse by the husband, it is strongly indicated that joint or shared parental responsibility is inappropriate.  The wife should be able to make all decisions concerning the welfare and needs of the children, without the inherent risks associated with any need to involve the husband in this decision‑making process.

18. This is an unusual matter.  The evidence of the wife sets out a long history of abuse, both physical and verbal abuse by the husband towards the wife, sometimes in the presence of the children or one of them.  The evidence of Mr F was clear, definite and based upon appropriate facts and expert opinion. 

19. Taking into account all of the factors required by the Family Law Act, the written and oral evidence of the husband, the wife and the expert called by the Independent Children’s Lawyer, I am satisfied that the best interests of the children require that the orders sought by the wife be made.

PROPERTY SETTLEMENT

1. The Court has documents provided by the husband and the wife and has heard the evidence of the husband and the wife.  I asked questions of the wife.  The wife produced further documents, after the directions orders were made in April of 2008.  I asked questions about those documents.

2. Having heard the evidence of both parties, I can make findings about the assets and liabilities of the parties only to a limited extent because of the difficulties in relation to that evidence.  I also consider the other factors which are necessary to determine a property settlement between the parties which is just and equitable in all of the circumstances.

ASSETS AND LIABILITIES

1. The wife owns property at P in South Australia which has an agreed value of $220,000.  Part of that property is occupied by the wife and the children and part by tenants who pay rent to the wife.  That property is subject to a mortgage.

2. The husband owns a half-acre block at S in Western Australia.  This property was purchased by the husband after the relationship between the husband and wife started in Hong Kong, in late 1993 or early 1994.  The parties met in 1994 and started living together.  They came to Australia in August 1994.  The husband used some of his business stock to purchase the land. 

3. The wife's evidence was that she did not make any direct financial contribution to the acquisition of this property, nor to its maintenance, save and except that she paid rates for the property whilst the parties were living in Western Australia.  The wife says this property is worth $299,000, based on a letter from a land agent.  This is not an official valuation by a licensed valuer.  The husband says in his documents that he estimated the property to be worth $200,000. 

4. During the trial the husband produced exhibit 5, a handwritten document dated 11 April 2008 which is just a matter of days before the trial commenced.  It is a document signed only by the husband.  It says:

   “I, [the husband], state I have sold to [Mr J McGregor] and [Miss M McGregor] the property known as [S property], Western Australia, for the sum of $1.  The seeling agent's fee, transfer fees and any outstanding rates are to be the responsibility of the joint purchasers.”

   It is then signed by the husband, giving his address as K Street, O. 

1. During the proceedings I required the husband to give notice of these proceedings to his children, the alleged purchasers of the property.  The husband said that they had been given notice and chose not to participate in the proceedings.  I consider the document to be a sham.  I consider that the husband has deliberately attempted to remove this asset from the consideration of this Court.

2. The husband also, at one time, suggested that he owed money to the estate of the late Mr W, in the sum of $109,800, which was a debt secured by Court order over the Western Australian property.  The wife says that this debt was only about $20,000 and that the husband has retained jewellery to cover this debt.

3. I do not accept that the Western Australian land owned by the husband (which he alleges he transferred to two of his children) is still subject to any security for the late Mr W’s debt.

4. The husband also owns a two-storey house at O.  He owned this property at the time the parties commenced their relationship.  The wife's evidence is that he had it a long time before the parties met.  He owed no money on it at the time of the commencement of the relationship but there is now a mortgage of $45,000.  The husband says the property is worth $120,000.  The wife says it is worth $150,000.  Again I do not have an expert valuation. 

5. The wife's evidence, which I accept, is that the husband refused an offer of $120,000, when the property was on the market at one time.  The wife helped pay for some significant improvements to this O property. 

6. The wife alleges that the husband has retained a large amount of stock, which was formerly stock in the business operated in Western Australia.  She claims that he retains this stock.  The husband denied this.  The wife claims that the husband was at one time hiding the stock in his house in O but she does not know where the stock is now.

7. I am not given the benefit of any records of the business which might have been prepared for tax returns or in the normal course of business which would be produced to show the items as stock, even at its original cost value.  I have no evidence, therefore, of the whereabouts of this stock or its current value, other than the self-serving evidence of the wife.

8. The wife at one time purchased land in P.  There was a house which was purchased during the period of separation which, on reconciliation, was sold and some of the moneys used to purchase three blocks of land in P.  Some of the money from the sale of the house was used to improve the O property and some spent on travel to Western Australia.

9. The husband borrowed 45,000 secured over his O property to repay moneys owing to the wife which she had used to purchase the current home at P, the purchase price being $112,000.  Some used to purchase a car.  Of the three blocks of land purchased by the wife, all three have been sold.  The wife produced settlement statements, which indicated one block sold for $11,399 and the other two for $65,627, making a total of just over $77,000.  These blocks were sold in August and December 2006.

10. The wife made a substantial profit on the sale of these blocks of land.  Her evidence was that she has paid capital gains tax on that profit.  The wife's evidence was that some of this money was used by the wife to pay her lawyers.  The wife produced receipts for $11,100 paid to her lawyers between August 2006 and July 2007.  The wife's evidence also was that she purchased a stove, airconditioning and other items for use by herself and the children. 

11. The wife gave evidence that approximately $15,000 cash, being the proceeds of sale of one of the blocks and the proceeds of sale of a caravan, were stolen from her house after the separation.  She suspects the husband was guilty of the theft.  There is no proof of that.  The wife paid back moneys owing on her credit card and money owing to her sister.  Of the $65,000 from the other blocks of land, her evidence was that nothing is now left.

12. There was also an issue, in the trial before me, about land in the Philippines.  The wife, during the period of the adjourned trial, provided to the Court a letter from her aunt, which referred to a 10-year sublease of some land in the Philippines.  I accept the evidence of the wife that she does not have the capacity to benefit from the remaining part of this lease.

13. The wife also produced a signed and witnessed letter, which she says is from her grandmother.  The evidence is that the wife will have an interest in this property when her father dies.  There is no reliable evidence about the value of the house built by the husband and wife on this land.  The wife estimates this to be worth approximately $A15,000.  The husband says $A20,000 was spent building the house on this land owned by the wife's grandmother.  These moneys were allegedly given to the couple as wedding presents and used for the purpose of building a property in the Philippines. 

14. The wife gave evidence, which was confusing, about a Ms I who holds some jewellery previously held by Ms I’s late sister as security for a loan to buy a caravan.  There was some suggestion that the jewellery held was worth $65,000.  The evidence was not sufficient to convince me that this asset is one which can readily be recovered.

15. The wife provided evidence that a caravan which she previously owned was sold in 2006 for $3500.  This money was part of the cash which the wife says was stolen from her home and she no longer has.

16. The wife's recent tax refund has given her a balance in her bank account now of some $3000.

17. The husband has a caravan which the wife says was worth $5000.  The husband in his financial statement says it was worth $1200.  There is no reliable evidence of its value.  The wife and the husband have other personal assets.  The wife says the husband had items such as antiques and collectibles at the time the parties commenced cohabitation, including gold coins and valuable stamps and other personal items.  Again there is no reliable evidence of their value.

18. The wife alleges that the husband continued to collect these sorts of items during their relationship.  The husband's statement of financial circumstances puts a value upon the items he still retains, but there is no reliable evidence of their current value.

19. The wife denies having the husband's jewellery or any of his items of sentimental value, which he referred to in his evidence and affidavits.  The husband discloses as a resource a small amount due from his father's estate.  The wife claims the amount would be much larger.  Again there is no reliable evidence.

20. Both parties have motor vehicles and other personal assets.  Both have limited superannuation expectations.

21. The Taxation Office produced documents which show that the husband owes the Taxation Office approximately $25,000, being a debt accumulated over many years.

22. The evidence about other possible assets or debts was not of sufficient quality to enable me to make findings, even on the balance of probabilities.  In this particular matter the lack of reliable evidence and the particular history of the parties' relationship makes it difficult and inappropriate to make specific calculations for these alleged assets and resources, or any accurate calculation of liabilities.

23. In these circumstances I have determined to take into account certain admitted assets and liabilities which are significant:

    (a)The husband's property in Western Australia was valued by the husband at $200,000 and by the wife's land agents at $299,000.  The wife's contribution to the rates and taxes for this property over a short period was her only financial contribution.  The Western Australian property was purchased at the time that the relationship commenced, using assets that the husband owned prior to the relationship.

    (b)The property at O, this is said to be valued at either $120,000 or $150,000 and subject to a mortgage of $45,000.  The wife has contributed to improvements to this property.

    (c)The property at P has an agreed value of $220,000 and subject to a mortgage of $89,000.

    (d)The wife claims that the husband has $150,000 worth of business stock in his possession.  The husband said that he has no such stock.  It is not possible to make specific findings, but it is probable that the husband has retained some stock of some value. 

    (e)The husband's tax debt of approximately $25,000 is also a proven factor but much of the debt may relate to the husband’s failure to obey the taxation laws.

24. The husband has a possible inheritance which is greater than the wife's prospects of inheriting property in the Philippines.

The current circumstances of the parties. 

1. The wife receives $150 per week rent, less commission, for 86 the property in P.  Her earnings, now, vary between $350 to $400 per week, on average.  She also receives $400 to $500 per fortnight government benefits for the children.  The husband was at one time paying a minimal amount of child support.  The wife is unlikely to receive any material assistance, either financial or otherwise, from the husband in relation to the ongoing care of the three children.

2. The wife pays approximately $300 per fortnight for the mortgage.  She has the other usual outgoings requiring her to provide for herself and the children.  She is not currently residing with her friend, Mr K, but is likely to do so in the future.  She has and will, in the future, have the benefit of his support, financially and generally.  Her health has been affected by the turbulent relationship with the husband in these proceedings, but she continues to work.

3. The husband asserts that he is on a disability pension, but also has indicated to the Court that he travels around Australia seeking some form of employment.  His evidence about his employment and how much he earned from it was not satisfactory.  I also take into account the husband's age compared to that of the wife.

4. The significant initial contribution made by the husband of the Western Australian property (or the assets which he used to purchase the property), and the prior ownership of the O property, need to be taken into account in the context of the wife having no assets when the parties commenced their relationship in 1993-1994.

5. The property in Western Australia and the property at O form a significant part of the assets now in the possession of the parties.

6. I take into account and place emphasis upon the fact that, during the relationship, the wife worked and made a greater financial contribution to the family than the husband.  I also consider the contribution made by both parties to the care of the children, prior to separation.  The wife has given evidence that the husband cared for the children whilst she went out to work.

7. It is appropriate to consider the principles set out in the case of Pierce v Pierce (1999) FLC 92-844 on the significance of initial contributions in a lengthy marriage. In this case the parties married in 1995, having lived together for a short time prior to that and separated, finally, in 2006.

8. The Full Court in the matter of Pierce said, at 85-881:

   “In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution.  It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife.  In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.  In the present case that use was a substantial contribution to the purchase price of the matrimonial home.”

9. In this case the initial contribution of the husband has been substantially retained in the form of the S (Western Australia) property and the O property.  The two properties in the husband's name represent 72 per cent of the net real estate now retained by the parties and are a significant portion of the remaining assets of the parties.

10. It is appropriate to bring into account the significant initial contribution of the husband.  Even if I give the wife a significant credit for her contributions since separation (which have been significant contributions in particular to the maintenance of the properties at P, and the substantial significant contributions as homemaker and parent to the children), I consider an adjustment of contributions 65:35 in the husband's favour is appropriate.

11. Taking into account the differences in age and future earning capacities of the parties, and the wife's substantial future ongoing responsibility for the three children in her care, the section 75(2) factors require an adjustment in favour of the wife of 10 per cent, which leaves a 45 per cent adjustment in favour of the wife.

12. In making the calculations I bring into account the assets, being the Western Australia property which I bring into account at say $250,000, and the O property at say $135,0000, which is subject to a mortgage of $45,000, leaving a net of $90,000, and the P property at the agreed figure of $220,000 less the mortgage of $89,000, net $131,000.  I have offset any tax debt that might be owing by the husband against any stock he may have retained from the business.  The other assets which the wife has retained, would clearly be offset against her ongoing needs in relation to the care of the children. 

13. $250,000 plus $90,000, plus $131,000 is $471,000.  45 per cent of $471,000 is $211,950.  The wife will retain the P property at a net value of $131,000 leaving $80,950 payable to the wife by the husband. 

14. I have carefully considered all of the factors in section 79 and have balanced off what order would be just and equitable in all the circumstances. I have taken into account the difficulties the wife faces in ongoing care for the children and balanced off the other factors such as the age of the parties and the contributions of the parties, both financially during the relationship and, most significantly, by way of homemaker and parent of each party. I conclude, therefore, that it is just and equitable to make the following orders.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  31 October 2008