Tillman and Tillman

FAMILY COURT OF AUSTRALIA

TILLMAN & TILLMAN

[2016] FamCA 14

FAMILY LAW – CHILDREN – significant alcohol and health problems – teenage children affected but conscious of parent’s problems – despite being teenagers, primary caring parent still needs control over movement of children – orders for sole parental responsibility made.
FAMILY LAW – PROPERTY – significant contribution by husband during long period of separation but where the children remained largely with wife – assessment of contributions.

Family Law Act 1975 (Cth)

Prantage and Prantage [2013] FamCAFC 105

APPLICANT:

Mr Tillman

RESPONDENT:

Ms Tillman

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

MLC

1102

2014

DATE DELIVERED:

22 January 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

18 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mccreadie

SOLICITOR FOR THE APPLICANT:

Kenna Teasdale Lawyers

THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dosanjh, Hartleys Lawyers

Orders

The husband have sole parental responsibility for the children E born … 2001 and N born … 2002.
That the children live with the husband.
That any arrangement for time between the wife and the children be by agreement between the husband and the wife.
That the husband authorise any school at which the children attend to provide to the wife at her expense, any document or information to which a parent of a child at that school would be entitled.
To the extent necessary, each party do all acts and things to forthwith sell the properties:
(a) A Street, Town D, United Kingdom; and
(b) B Street, Town C, United Kingdom
and for that purpose, the husband be responsible for the conduct of such sales.
Upon the settlement of the sale of the properties at A Street and B Street, the proceeds be applied as follows:
(a) To pay all costs, commissions and expenses of such sales;
(b) To discharge any mortgage encumbering the title to such properties;
(c)To set aside the sum of $200,000 to be held in an interest bearing account by Kenna Teasdale as trustees for both parties and such sum to be applied to any taxation liabilities associated with any of the sale of any of the properties in the United Kingdom otherwise referred to in the reasons for judgment this day and in the event that after the payment of all such taxes, there is an excess available, that sum be divided as to 27.5 per cent to the wife and 72.5 per cent to the husband;
(d)To pay whatever sum is necessary to discharge the mortgage to Chelsea Building Society secured against the property situated at F Street, Town D, United Kingdom; and
(e)To otherwise then pay any money left thereafter to satisfy the entitlements of the husband and the wife pursuant to the following orders.
That upon the settlement of the sale of the last of the properties in the United Kingdom referred to above, and the discharge of the Chelsea Building Society mortgage encumbering F Street, Town D, the husband do all acts and things and sign any necessary documents to transfer to the wife at her expense, all of his interest in the property at F Street, Town D.
That by way of property settlement, the husband pay to the wife $300,000 less:
(a)$6738 (representing the wife’s share of the fees paid to Dr L, Dr R and H Valuers; and
(b)The sum of $3000 towards the husband’s costs arising out of the hearing before Macmillan J on 7 December 2015.
That the wife pay towards the husband’s costs of the hearing on 7 December 2015, the sum of $3000 (such sum to be satisfied by way of the Order set out in paragraph (8).
To the extent that the entitlement of the wife referred to in paragraph (8) is not met in full by the net proceeds of the sale at A Street and B Street, such short fall be paid by the husband forthwith upon the settlement of the last of the sales and for that purpose, the husband forthwith authorise Kenna Teasdale Lawyers to pay such sum from the money held on behalf of the parties by Kenna Teasdale Lawyers (and representing the sale proceeds of the G Street sale).
That subject to the foregoing obligations, the husband be entitled to be paid the balance of the funds held on behalf of the parties by Kenna Teasdale Lawyers and any other monies resulting from the sale of properties and these orders shall be sufficient justification to make the relevant payments to the husband without the written authorisation of the wife.
That the husband retain and the wife relinquish any interest in:
(a)       Y Street, Suburb N;
(b)       O Street, Town H, United Kingdom;
(c)       The block of land at County X, United Kingdom;
(d)       The motor vehicles in the husband’s possession;
(e)       The shares in the husband’s possession; and
(f)       The superannuation entitlements of the husband.
That the wife retain and the husband relinquish any interest in:
(a) The motor vehicle in the wife’s possession; and
(b) The wife’s superannuation entitlements.
That all extant applications be otherwise dismissed subject to any further application for costs by either party.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That the Independent Children’s Lawyer be otherwise discharged from the proceedings.
That the solicitors for the husband forthwith provide the wife a copy of these orders by mail notwithstanding that the Court may also do so.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tillman & Tillman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1102 of 2014

Mr Tillman

Applicant

And

Ms Tillman

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This judgment relates to the property and parenting dispute between

Mr Tillman (“the husband”) and Ms Tillman (“the wife”). For reasons given separately, both matters proceeded on an undefended basis upon the husband’s application.
The wife did not attend the final hearing and her response which sought final orders, was struck out. To be clear, the Court was satisfied that the wife was aware of the hearing and had been given an opportunity to be heard but had chosen not to participate. She was present at a hearing before Macmillan J on

7 December 2015 at which time various interlocutory orders were made for the filing of material for the forthcoming trial. She was also present on

31 August 2015 again before Macmillan J when the matter was listed for a final hearing as a five day matter on 18 January 2016.
Indeed, the wife gave two indications of her view about the hearing. First, she informed a property valuer (who in turn informed the husband) that she did not intend to be present at the final hearing. Secondly, she arranged with the older of the parties’ children to spend the day at an adventure park on

18 January 2016. Endeavours to contact her during the morning were unsuccessful as she did not answer her mobile telephone.
Unlike situations where a court could evince an intention or desire of an absent litigant to participate in proceedings, here, the wife made her attitude clear. She did not intend to participate.
The wife’s absence was not to her disadvantage in respect of the parenting issue because the children have been living with the husband for a long time now and the wife’s role in their lives has been limited. Because of the ages of the children and for the reasons that follow, the wife’s proposed orders that the children live with her could not succeed even on the most optimistic view of her own evidence.
There was however, a distinct disadvantage to the wife in respect of the financial proceedings. In addition to a property settlement, the wife had also sought spousal maintenance but in respect of the latter, she offered no relevant evidence in the affidavit material that she had filed. In respect of the former, it was submitted by counsel for the husband that much of what the wife had said was but “scatterings” of relevant information. I agree.
Absent significant involvement by the wife in respect of any evidence that would support the orders she proposed in the response she filed in

October 2015, along with her absence to make submissions about those orders, the Court knew what her position was but unfortunately, not why she had adopted it. The unchallenged evidence of the husband supports orders being made because he at least, adduced the necessary evidence to enable the jurisdiction in Part VIII of the Family Law Act 1975 (“the Act”) to be activated and for the powers in s 79 of the Act to be applied to that evidence.

The parenting proceedings

The parenting proceedings concern E who is aged almost 16 years and N who is aged almost 14 years. They currently reside with the husband and each has a very clear view about the nature of the relationship with their mother.
In addition to the fundamental nature of the problems in the parent and child relationship, there is now the compounding difficulty of the existence of an intervention order made against the wife on 3 December 2015 that includes the children as affected persons. The wife is excluded from the lives of the children save for any orders under the Act. That “condition” requires careful consideration of the nature of orders to be made on the application of the husband whose position is supported by the Independent Children’s Lawyer.

Issues

There were only two issues for determination. The first concerned what

(if any) orders should be made for the wife to spend time with the children. For the reasons that follow, the only order that should be made in respect of that time is that it be by agreement between the husband and the wife. I am not prepared to simply make an order that the children decide when (and if) they spend time with their mother. That unnecessarily empowers the children in circumstances where at least the younger child’s relationship with his mother is somewhat confusing. The older child is of an age where she can make decisions but I also want to avoid the situation where she can be manipulated by her mother.
The proceedings had initially been conducted on the basis that the parties would have equal shared parental responsibility but the husband altered that position shortly prior to trial. In my view there can be no doubt that the wife’s behaviour to which I unfortunately have to refer below, warrants the husband having sole parental responsibility on the basis that there is little prospect of any civility in negotiations about the children and about important decisions in their lives.
In respect of property matters, the only question is what entitlement the wife should have to a cash payment from the proceeds of the sale of real property.
Until shortly prior to the commencement of this hearing, the husband had certainly been conducting his case in a way known to the wife as set out in not only his formal application but also the outline of case document which had been filed by his lawyers on 14 January 2016. At the hearing, his position changed but in my view, there is no prejudice to the wife in respect of the financial matters because the position put by the husband benefits the wife more so than the outline of argument did.
The same issue arises in relation to equal shared parental responsibility. The outline as filed on 14 January 2016 by the husband’s lawyers indicated that he was content for an order to be made for equal shared parental responsibility. That was altered immediately prior to the hearing but again, in my view, there is little prejudice to the wife because she has had little involvement in the decision-making role over recent years and having regard to the state of the schooling of the children, it would seem that that is not likely to be a problem in the future. I am satisfied on the evidence that the husband is likely to consult with the wife in respect of medical problems should they arise for the children and otherwise there would be little likelihood of any problem arising that would require the sharing of parental responsibility. In any event, all of the evidence points to the conclusion that there ought not be an order for equal shared parental responsibility.

Background

The nature of the relationship between the husband and the wife may be seen as unusual and as it affects the property proceedings in particular, reference should be made to it.
The husband is aged almost 45 years and is involved in the information technology industry. He earns about $115,000 per annum.
The wife is aged almost 41 years and (as best can be understood from her financial statement filed in September 2015 and upon which the husband relied) is currently a Centrelink recipient. In that capacity, she pays nothing towards the support of the children. She has had employment in an administrative position but why she ceased that and why she has not sought employment, remains unclear.
The parties met in 1997 and married in 2000. The older child was born in 2001 and the parties separated only weeks later. They remained separated for nine years notwithstanding the conception and birth of the younger child in 2002. All of this occurred in the United Kingdom.
During the separated period, the children remained with the wife and the husband continued his various employment positions at times a considerable distance away from the children. The evidence supports a conclusion however that he did not abandon the children and was very much involved in their lives. At various times, he lived on the same premises as the wife. Whilst the wife was clearly the primary carer of the children whilst they were young, I have no doubt the husband was involved as a parent.
Houses were purchased by the husband including one for the wife which required a joint mortgage and for which, the husband was financially responsible. During all of this, the husband was aware of the wife’s problems with alcohol. Although the problems caused by the wife’s alcohol consumption abated late in that decade, they never seemed to disappear. They are still a problem now.
The evidence of Dr R (a psychiatrist) sufficiently describes the problems of the wife’s health now. He said:
In summary, [the wife], is a 40 year old woman with a longstanding history of social anxiety who was diagnosed as having an Autism Spectrum Disorder about four years ago. She has had longstanding problems with alcohol abuse, at least in part as a way of dealing with her interpersonal social difficulty. [The wife] attributes many of her difficulties to the mistreatment she experienced at the hands of her husband throughout the marriage.
In addition to the obvious complaint by the wife about the husband to which

Dr R referred, the evidence to which I shall return below shows that the wife consistently accused the husband of “mistreatment”. Nothing I heard in the evidence would support a conclusion that he had been responsible for family violence in any form.
In case it was thought that Dr R was simply repeating the diagnosis of other professionals, he went on to say:
[The wife’s] presentation at interview was consistent with a woman with ASD and significant anxiety. She showed some evidence of paranoid ideation in relation to [the husband], whom she sees as responsible for excluding her from a relationship with her children.
Again for the reasons that follow, I accept Dr R’s opinion about the health of the wife but there is nothing in the evidence that would support a conclusion that the husband has done anything to exclude the children from the life of the wife.

The husband’s evidence

The husband’s evidence has been accepted as unchallenged. Unchallenged but admissible evidence still requires a court’s determination as to its weight. Here, there was nothing implausible about the husband’s evidence. In addition, this is not a jurisdiction in which orders are made on a default basis. The husband was required to prove his case on the balance of probabilities (s 40(2) of the Evidence Act 1995 (Cth)). In respect of such things as the values of assets, the husband produced admissible and accepted expert evidence.
There were clearly relationship problems by 2009 exacerbated by the wife’s alcohol consumption. In late 2009, she began seeing a counsellor and the husband said there was a reduction in her consumption. At the same time, the wife was referred to a specialist who diagnosed high functioning autism.
A significant part of the husband’s case relating to property matters is that his contribution of a financial nature was so much greater than that of the wife. The submission of the husband is that he brought in to the relationship significant assets and he set them out in paragraphs 114 and 115 of his affidavit of evidence. However, the evidence shows that that was in late 2011 at the time when the husband and wife “resumed” their relationship after the nine years of separation. It must not be forgotten that throughout that nine year period, the wife was fulfilling a major role as a carer of the two children (albeit with assistance from the husband).
In his counsel’s summary of argument, the husband referred to a deed of separation dated 17 December 2009 under which he was to retain the properties referred to in paragraph 114 of his affidavit and encumbered by the liabilities in paragraph 115 and he was required to pay the wife £7100UK. No evidence was led in relation to that agreement but it would appear not to be contentious. The wife referred to it in an affidavit she filed in this Court on 14 November 2014 (paragraph 14) wherein she annexed a letter from the husband’s solicitor detailing the nature of the settlement. She then confirmed in the affidavit that she was paid the money albeit that she then maintained that the husband required her to return it to him as she saw that it was all part of a fraud on the United Kingdom government. It would therefore not seem contentious that there was a settlement under which the wife relinquished any interest in properties owned either jointly or by the husband alone in return for the payment of money. That would then seem consistent with the husband’s evidence that when the parties reconciled their relationship, he brought into it the various properties. That argument however ignores the wife’s contribution of caring for the children during the period that the parties were separated for nine years.
Limited though the evidence may be, I am satisfied that the husband had significantly more assets than did the wife when the parties resumed their relationship in late 2011. As the relevant paragraphs to which I have referred in the husband’s affidavit simply contain estimates, I am not in a position to make a finding as to the quantum of that contribution.
Having reconciled, the parties travelled to Australia in May 2012 where the husband obtained employment. The move to Australia however did not resolve the relationship problems. Initially, the parties lived in rented premises.

The husband said, and I have no reasons to doubt as a result of the evidence of Dr R and the family consultant to whom I shall shortly turn, the wife was again drinking to excess and harassing both the husband and the children.

Such was the conflictual nature of the parties’ relationship that on 17 April 2013, the husband obtained an intervention order against the wife. This arose out of an incident in which the wife assaulted the husband in the presence of the children and the older child telephoned the police. The application for the intervention order was made by one of the attending police officers and on

24 June 2013, the wife consented to the order. That order included the children as protected persons.

The children have been affected by the conflict between the parents.

They were referred to a registered psychologist in 2014. Although there was no formal evidence from the psychologist, the husband tendered into evidence a report written by Ms M who concluded that if the “challenges” within the household continued, they were likely to lead to negative consequences for the children in areas such as academic achievement, peer relations and

self-esteem. The report noted that the older child advised that her mother would become “annoying” when she was drinking and would not leave “them” alone and that it was very stressful being at home. The older child described her feeling of hopelessness. The younger child simply described his mother’s behaviour as embarrassing.
The intervention order and the fact of the children being provided assistance though the psychologist seems to have had little impact. The husband reported that in November 2013, having consumed alcohol for most of the evening, the wife accused the husband of sexual abuse of the children. It would seem that the older child was present. The conflict reached such a height that the police were required to attend to calm the troubled waters. The husband’s evidence was that there were other incidents where he was abused by the wife and the police were again called. The clear inference is that the police were regular visitors to the parties’ home. I have little doubt based on the evidence that the lack of action by the husband to end the relationship and exclude the wife caused not only frustration for the police but also an unnecessary waste of community resources.
There were continuing problems thereafter all of which appear to have been witnessed by the children. In December 2013, an incident occurred in which the older child and the wife struggled and the wife twisted the child’s arm causing her pain. Again sadly, the police were called and the wife was escorted from the home. Administration to the wife of a breath test showed the presence of alcohol. Similar incidents occurred thereafter. The husband gave evidence of the wife’s verbal abuse of him such as calling him: “a pathetic little man”,

a “control freak”, and her abuse was then extended to the husband’s mother and inappropriate comments made in front of the older child.
In January 2014, the Department of Human Services intervened into the family’s home. A Department employee warned the husband about the impact of what was happening to the children. It was the Department’s view that the time between the children and the wife should be supervised.
The impact on the children of the exposure to the conflict ought be obvious.

It had already become apparent from a counselling session with Ms M. By February 2014 however the children were witnessing chronic verbal abuse and denigration by the wife of the husband. At this time however, it was the wife who instituted proceedings for an intervention order in the State court. Just what happened to that remains unclear but the wife issued another intervention order later in 2014 but she failed to prosecute it and it was dismissed.
From February 2014, the police were further involved all of which would appear to be as a result of the conduct of the wife. That then saw the commencement of proceedings in the Federal Circuit Court. That court made an order by consent of the parties to attend upon Dr L for the preparation of a family report. The parties attended in March and April 2014. That culminated in the wife agreeing to leave the home and the children were to remain with the husband. The husband began paying the rent on a property for the wife.
Even the separation in the middle of 2014 did not result in the conflict abating. An incident occurred in June 2014 at the younger child’s school play in which the husband was verbally abused by the wife and kicked in the head. In September 2014, a series of text messages was sent to the husband by the wife which were unnecessary, abusive and cryptic. One might also glean that the wife had a very poor view of the legal system.
All of this continued over the ensuing year right up to a final incident in 2015 which I find epitomises the manifestation of the problem adverted to by

Dr R. In November 2015, the wife attended the home intoxicated and attempted to enter whilst the children were present. The children were described as barricading the home with their backs. There is little doubt that they observed what was going on. Eventually the wife entered the home and assaulted the husband. At that moment, the police arrived and escorted the wife away. That precipitated the husband applying for an intervention order which ultimately came before the Magistrates’ Court on

3 December 2015. The wife agreed to the order albeit without admissions as to the allegations.
All of this was in the shadow of the final hearing that was to commence on

18 January 2016. Because of the property issue, the husband required valuation evidence. The wife refused to cooperate and an application was made before Macmillan J on 7 December for properties in the United Kingdom to be valued. The wife refused to sign any authority and her Honour made an order under s 106A of the Act for the Registrar to sign the necessary letters. That particular application gives rise to a costs application to which I shall later return.
Macmillan J was obviously aware of what had taken place only days before giving rise to the intervention order being made by the Magistrates’ Court. Because there was still an extant parenting issue before the Court, her Honour ordered that the family report writer do an addendum “having regard in particular to the incident on 13 November 2015 and the intervention order proceedings arising therefrom”.
The wife did not attend the appointment made with Ms P the duly appointed family consultant. Accordingly, the report of Ms P was limited to the facts described by the husband. Ms P did however interview the children and therefore her unchallenged evidence is of some significance.
The relevant reports of the family consultant were ordered by the Court under

s 62G(2) of the Act. Section 62G(8) provides that any such report may be received in evidence in any proceedings under the Act. Having regard to the purpose for which Macmillan J ordered the report, I propose to admit it into evidence.
Ms P observed that the children do not want their mother to drink alcohol because they have witnessed the detrimental effects and changes to her personality as a consequence. The children were described as being shaken and hurt by their mother’s behaviour but maintain a wish to pursue a relationship with her. The older child was described as impressive and a balanced young woman with a mature outlook. That comment has significance for the purposes of giving weight to the views of the children in these proceedings. The younger child was described as a young adolescent who was able to express his thoughts in a clear and capable manner. Sadly, the family consultant then observed:
Both children are acutely aware of the conflict between their parents and the impact on them of their mother’s unpredictable and errant behaviours. [The older child] readily forgives her mother and equally is able to forge plans for future contact. However it is likely she will seek and demand answers from her mother regarding her inappropriate text messages and behaviours.
Despite the (intervention order) incident, which occurred at the family home, the younger child was also open to spending time with this mother only if the older child was present prior to and on Christmas Day. He was able to identify positives about his mother and lamented again that if only she did not drink there would not be any problems.
The reasoning behind the wife’s non-attendance at the family consultant appointment remained a mystery. It is clear however that the children did spend some time with their mother at Christmas and I have already referred to the absence of the wife on 18 January because she was attending a theme park with the older child.
In a report dated 17 November 2015, which I also intend to admit into evidence pursuant to s 62G(8), Ms P observed that the children do love their mother and want to spend time with her but their experiences had been “tarnished” by her behaviour. The family consultant opined:
[The children] are young adolescents and at ages where they can leave their mother’s home if she engages in denigration of their father or consumes alcohol, or engages in behaviours that they find unsettling. The distance between each parent’s home is approximately a ten minute walk. Both children have mobile phones and can also contact their father to come and collect them.
The family consultant opined that the wife did act in a deliberate and provocative manner although at times she could control herself. It was the consultant’s view that both the children and the wife would benefit from help. That report was written prior to the intervention order proceedings in December 2015 so it would appear unlikely that there is much prospect in any order for counselling being carried out by the wife. In my view this is a case where the children will vote with their feet.
In her November 2015 report, family consultant Ms P recorded her observations of the wife. She was described as anxious and having

a communication style which was verbose and often unclear. She made accusations against the husband of violence and accused the husband of not being available for the children in respect of their care. The very absence of the wife from these proceedings where she would have had the opportunity to test those propositions enables me to find that there is little substance to her accusations. It was noticeable that the wife told the family consultant that she had stopped taking medication for anxiety and depression because she was no longer exposed to the husband’s “controlling behaviours” in the home.

Yet only weeks later in November 2015 she attended at the home and caused the ruckus that gave rise to the intervention order. The family consultant reported that the wife has a number of services available to her and with whom she is familiar and that the wife had found them invaluable. Again, the November incident would tend to suggest that things can change very quickly and the wife does not have her problems under control.
Ultimately, the family consultant noted that the wife said that the husband was not honest and that ultimately the truth would come out. However, the family consultant noted Dr R’s views to which I have earlier referred and in particular, his reference to the wife appearing to suffer some paranoid ideation in relation to the husband. There is much to be said for that opinion.
The children appear to have progressed well at school both academically and socially and there are no behavioural concerns there. That is a credit to the children and also to the husband having regard to what the wife has subjected them to over the period of time that they have been in Australia.

The husband’s parenting

The husband gave evidence as to his daily activities and how he manages the home life for the children. There was nothing controversial about that and I am satisfied that he is a capable and responsible parent. The evidence of the settled nature of the life of the children indicates that they are well cared for by the husband.

The evidence relating to property matters

As I have indicated, Macmillan J made an order in December 2015 for the properties outside of Australia to be valued. The husband relied upon the evidence of valuers Longden, Lewis and Clayton. I have read their affidavit material.
The husband also produced an aide memoir at the hearing to show the list of assets and liabilities of the parties. In that list of assets and liabilities, there was reference to two payments of $50,000 drawn down by the parties as part property settlement. One was received by the wife and the other by the husband. It is clear that the husband’s money was paid as a part property settlement but it also went to legal fees. Notwithstanding legal fees should normally be “added back” to the divisible assets in some way if they are prepaid, I do not consider it would be just to do so in this case having regard to the fact that I do not know what happened to the money taken by the wife.

At the time that the payment was made, she was not represented by lawyers and I am unaware of whether or not she had outstanding legal bills to her previous practitioners. I am also unaware of whether or not the wife was living on that money. Although she was a Centrelink recipient, it would seem that the husband was paying her rent so she was presumably able to live within her means as she was making no provision for the support of the children. It would therefore not be fair to add one back and not the other. As the money no longer seems to exist, I shall ignore it.
The husband gave evidence as to the values of other properties and their encumbrances and I accept that evidence. He had researched the share market values of the two share groups that are set out in the aide memoir.
The husband included in the list of assets the wife’s car which he put in at $12,000. There is no evidence of that but the wife asserted that the car was worth $9000 in her financial statement in 2015 and I accept that as an admission against interest by her.
Other details set out in the aide memoir related to superannuation and the husband gave evidence of the printouts that he has received and how they were calculated. There is no reason for me to doubt the accuracy of what the husband has portrayed.

Taxation on the sale of assets

There was no specific evidence as to the amount of tax that would have to paid on the sale of assets in the United Kingdom. The husband gave evidence and

I again have no reason to doubt it, he had made inquiries of his accountant who was responsible for the management of the accounting issues in both the United Kingdom and Australia. That evidence is based on the various estimates of the sales of the properties. There will be somewhere beyond $128,000A to be paid. That should be taken into account and I propose to set aside the figure suggested by the husband of $200,000 to cover that contingency. Any unpaid balance can then be distributed between the parties on a percentage basis.

The unpaid psychologist bill

The parties had attended upon Dr L and Dr R as well as obtaining a valuation from H Valuers all pursuant to court orders. The wife has not paid her one-half share and although the outline of case documents had

a different figure within it, I am satisfied that the correct figure owing by the wife is $6738. That should come off any entitlement which she already has.

The proposed orders of the husband

The husband proposed that orders be made that left the issue of the wife’s time between he and the children to be sorted out between the adults.

The Independent Children’s Lawyer supported that concept. I have already referred to the question of the husband’s pursuit of sole parental responsibility.
In respect of property matters, the husband sought that the A Street and B Street properties in the United Kingdom be sold and that he be responsible for the sales. That makes sense because of the fact that he is the owner of them in any event.
The husband then sought that from the proceeds of those sales after discharging the encumbrance, $200,000 be set aside in an interest bearing account for the purposes of covering the taxation details to which I have already referred and any excess be divided as to 25 per cent to the wife and 75 per cent to the husband. He then sought an order that the wife be paid $210,867 and he otherwise retain the balance.

The legal issues

Part VII of the Act sets out the pathway to be followed in determining

a parenting dispute. Section 60CA provides that in deciding whether to make

a particular parenting order, the Court must regard the best interests of the child as the paramount consideration. In this case, that is foremost in my mind.
In contemplating what is best for the children, the Court is guided by the objects and principles underlying Part VII of the Act. Those provisions include that the children should have the benefit of both of their parents having

a meaningful involvement in their lives to the maximum extent consistent with their best interests. It will be evident from what I have earlier set out that some form of cooperative parenting or sharing of the child-rearing tasks in this case is improbable. The objects require the Court to ensure that the children are protected from physical and psychological harm in being subjected to or exposed to, abuse, neglect or family violence. That object cannot be met in this case unless the wife is placed in a position where she has a limited role in the lives of the children at this time. That must continue whilst she continues to behave the way she has, exacerbated by alcohol or otherwise.
These children are being exposed to family violence. Family violence is defined in s 4AB(1) of the Act as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. I am satisfied on the evidence that

I have read and heard that the wife is violent and makes threats but she also uses behaviour for the purposes of coercing and controlling the husband.

In doing so she causes the children to be fearful. That can be seen in the late 2015 incident where the children “barricaded” themselves against the door when the wife was endeavouring to enter. In addition to all of those matters, there is an air of resignation about the children having seen their father constantly berated and abused. There can be no other conclusion that I can draw than that the wife behaves as she does exacerbated by alcohol or not, to control the husband into doing what she wishes. I am satisfied therefore that the wife is a person responsible for family violence. That finding is corroborated by the very fact of the making of an intervention order. Accordingly, it is incumbent upon the Court to protect the children from

a continuation of that harm in being exposed to abuse and family violence.
Section 60B of the Act goes on to say that another object of Part VII is to ensure that children receive adequate and proper parenting to help them achieve their full potential. I am satisfied that the children in this case are receiving all of the necessary assistance to achieve their potential as is evident from the fact that the family consultant observed that there were not difficulties for the children in their academic sphere or amongst their peers.
The Court is also obliged to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of the children. It is quite clear from the absence of the wife that she has little regard for the problems she creates. That can be seen in the fact that she told the family consultant in October of how things had changed and the assistance she was being given and yet a lapse occurred only days later. It is inconceivable therefore that the Court could make an order in this case in a positive sense to try and ensure that the wife fulfils her duties as a parent to assist the children.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of a child or in family violence. The presumption may be rebutted also by evidence that satisfies the Court that it would not be in the best interests of the children for the parents to have equal shared parental responsibility

(s 61DA(4)).

Having satisfied myself that there has been family violence, this is not a case where the presumption applies. Even if that were not so, it is not in the best interests of the children that their parents have equal shared parental responsibility.
That conclusion is supported by reference to s 65DAC(3) which provides that if an order for equal shared parental responsibility is made, the parents are required to consult one another in relation to a decision about a major long term issue relating to children and to make a genuine effort to come to a joint decision about that issue.
Major long term issues are defined in s 4 of the Act to mean issues about the care, welfare and development of a child of a long term nature and include education, religion, health, a child’s name and changes to a child’s living arrangements which might affect contact. Albeit that those issues are unlikely to arise often in the lives of the children, it is clear on the evidence that there is little prospect of the wife making a genuine effort to come to a joint decision with the husband. Her general approaches to the husband appear to be alcohol infused and her cognitive processes affected. Even her written approaches descend to denigration and abuse. In my view it would not be in the best interests of these children to have such important decisions in their life held up or made the subject of argument because of the conduct of the wife.

I am therefore satisfied that an order for equal shared parental responsibility in this case is unworkable.
On any view therefore, the appropriate finding to make is that the presumption does not apply in this case and the husband should have sole parental responsibility.
I have already indicated that any decision about the nature of parenting has to have the best interests of the children as its focus. To determine what is in the best interests of the children, the Court is obliged to consider the matters set out in s 60CC of the Act.
It is important that the Court protect the children from the harm to which I have already referred. The only way I can consider that feasible in this case is if the arrangements for the wife’s time with the children are made with the husband and having regard to the age and level of maturity of both children, he will no doubt canvas the wife’s request and take responsibility for arrangements until such time as he is satisfied that the children can make them with the wife.
It is important that the Court take into account the views of the children. I have already set out the opinion of the family consultant about the maturity and understanding of the children. In my view there should be provision for the children to have the opportunity to contact their mother if they so desire but it must not be at her whim or theirs. Accordingly, I will take into account that the children wish to see their mother but it must be under the guidance of the husband.
The Court is obliged in determining what is best for the children to contemplate not only the nature of the relationship between the children and the parents but also the manifestation of parental responsibility as well as parental capacity.

In respect of those matters, I am satisfied on the evidence that the husband has been a responsible and capable parent and that he has a close and loving relationship with the children. The absence of the wife has made any determination difficult but her conduct that I have described in the presence of the children has been irresponsible. Her capacity to care for the children must, in those circumstances, be seen as limited. Her relationship with the children was best described by the family consultant who indicated that the children wanted their mother but absent the conduct about which they were so concerned. All of those matters indicate that the appropriate parent to have the major role in the lives of the children is the husband and the wife should have

a very limited role.
The Court is also obliged to consider the role that each parent has taken in the decision-making processes as to the spending of time with children. I have no criticisms that I can make in respect of the husband but the wife’s conduct has meant her participation in the lives of the children has been minimal.
The Court is also obliged to consider the effect of any changes in the child’s circumstances by separation from a parent. There is no suggestion that the children want to live anywhere other than with their father at the moment and their role with their mother is such that they are not perturbed about her absence.
Other matters in s 60CC of the Act include a consideration of family violence and I have already dealt with that issue above.
The Court is also obliged to consider whether it would be preferable to make an order that would be least likely to contribute to further proceedings.

These children have only a few years of childhood left and they deserve better than that to which they have been exposed in the parental conflict. I am satisfied on the evidence that it is the wife who has been responsible for that conflict.
Absent some specific proposal by the wife which has not been forthcoming because of her absence, my view is that the appropriate order is that the children spend time with her according to arrangements to be made under the control of the husband. In my view those orders are in the best interests of these two children.
As part of the orders proposed by the husband, he sought injunctions in relation to denigration, harassment, intimidation and so forth. Notwithstanding the evidence is abundantly clear that the wife has engaged in such conduct and it would seem from the November incident that it will not abate, there is an extant intervention order at least until June 2015 which precludes the wife from behaving in such a manner. Whilst the Court could make an order under s 114 of the Act of that nature to take effect upon the cessation of the intervention order, my view is that the police involvement is more effective than having to come back to court to enforce such an order. It may be more appropriate if, by the time the intervention order expires, the problem is still extant, the husband takes out an application for an extension of that order. Accordingly, I do not see there is a basis for me to make the injunctive relief sought by the husband.
The husband also sought orders that the wife be restrained from consuming alcohol within 24 hours prior to her having the care of the children. Having regard to the nature of the orders I propose to make which are distinctly restrictive, there is little point in such an order being made.
The husband also sought orders that the wife attend a post-separation parenting program and provide written proof that she had done so. Again, if the wife has not learned that there is a serious problem in her parenting not just reflected in these reasons but also in the comments of her own children, it would seem that there is little point in forcing her to undertake such a course. The very nature of the explanation by the children about what they desire of a relationship with their mother is indicative of the fact that the wife needs to do something about her personal conduct. In my view, it is unnecessary and inappropriate for the Court to make an order of that nature where there is no indication that the wife would voluntarily participate. The same must be said of the proposed order by the husband that the wife attend no less than ten sessions of drug and alcohol counselling. Whilst that may be a forlorn hope, it is difficult to enforce and pointless unless there is some voluntary basis for it to be thought worthwhile.

I can see no benefit for the wife let alone the children in such an order being made.

The property issues

Part VIII of the Act provides that in property settlement proceedings, the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property of either of them. (s 79(1)).
Section 79(2) provides that the Court shall not make an order under s 79 unless it is satisfied in all of the circumstances that it is just and equitable to make the order. In this case, both parties initially sought that an order be made but particularly the husband who is the only one who is entitled to make specific proposals because of the absence of any response by the wife.
It is unnecessary in this case for me to determine the legal and equitable ownership of the properties because the assets are predominantly in the husband’s name.
Historically, the properties in the United Kingdom were largely (but not entirely) purchased by the husband but the settlement in 2009 saw a transfer of any legal or equitable interest that the wife had in any of those properties to the husband.
The Suburb N property was described as being acquired by the parties in 2012 for $910,000. That was funded by a mortgage of $815,000 to the Commonwealth Bank and the balance came from the parties’ credit cards.

The wife was said to have received the proceeds of an endowment policy belonging to the husband in compensation for the use of her credit card facility. The husband asserted (his financial statement) that he was the sole proprietor of the N property and has been solely responsible for the mortgage liability. I have assumed that the only interest that the wife has in the N house is an equitable one.
I find the interests of the parties and the values of the equities are as follows (figures have been rounded where appropriate):
The N property  $1,700,000
Less mortgage encumbrance                 815,000    $885,000
A Street and B Street
UK properties (to be sold)              $1,240,500
Less mortgages  594,500    $646,000
O Steet UK property  $731,016
Less mortgage  328,000    $403,016
F Street property  $290,745
Less mortgage   227,500    $63,245
Proceeds of sale of UK
Properties  $370,869
Land in County X  $10,000
Husband’s cars  $14,000
Wife’s car  $9,000
Husband’s shares  $19,863
Sub total  $2,420,993
Less:
Allowance for Taxation on sales         $200,000
Credit cards  $54,000               $254,000
TOTAL EQUITY-NON SUPERANNUATION $2,166,993

Superannuation

Between them, the parties have superannuation of modest amounts. That totals $40,111 and of that, the wife has approximately $3800 in accrued interests. Having regard to their ages, that is, it is a substantial time before they can access these entitlements through retirement, it would not be appropriate to treat the sums as if they were the same as the property shown earlier in these reasons.

The approach of Division

Section 79 of the Act requires the Court to “take into account” the matters set out in s 79(4) when determining what (if any) order should be made. The matters requiring such consideration are:
·   The financial contributions made to the acquisition, conservation and improvement of the property of either party;
·   The non-financial contributions made to property;
·   The contributions made to the welfare of the family;
·   The effect of any proposed order upon the earning capacity of a party;
· The matters set out in s 75(2) of the Act;
·   Any other order affecting a party or child;
·   Child support under the relevant child support legislation that has been, will be or might be provided for a child.
The long period of separation shortly after the marriage is significant but so too is the fact that the wife was largely responsible for the welfare of the children in that period. Although the husband’s case outline seemed to look more closely at the period subsequent to the supposed reconciliation in 2011, the court is obliged to look at the whole of the relationship. The fact that the parties entered into an agreement in the United Kingdom in 2009 is simply evidence of what the parties were then acknowledging as to the future legal entitlements to property no doubt based upon what they had each thought about the contributions each had made in the past.
I conclude that on the evidence, the husband’s financial contribution throughout the entire relationship has been overwhelmingly greater than that of the wife. I do not consider it would be just and equitable to ignore two important facts here. First, the assets have generally all been purchased in the husband’s name. That evinces an intention on the part of the parties to keep their interests separate. Secondly, the separation agreement in 2009, although neither decisive nor binding on this Court, was an acknowledgment by the wife of the husband’s far greater contribution generally. To accept the modest sum as she did, indicates that.
During the separated period before the reconciliation, the husband was assisting the wife financially and also fulfilling an important role as a parent when he was able to do so. The period since that reconciliation, but specifically the period since the parties arrived in Australia, has seen the husband’s welfare role being much greater than that of the wife. The non-financial role throughout the relationship has seen the husband fulfil a greater role than that of the wife. He undertook various renovations to property and managed the properties from which the wife now seeks a share. The wife has provided no financial support for the children since the husband has had the responsibility for their care but I accept that her financial position for that purpose is not significant.
Before contemplating the future for each party (and for the moment ignoring the relevant s 75(2) factors at this point in the assessment), I would alter the parties’ interests in all of the property on a global basis. Notwithstanding the husband maintained that he brought so much property into the relationship, I cannot overlook the role that the wife fulfilled in those earlier years. Having said that, the evidence supports a conclusion that the husband’s welfare role has been at least equivalent to that of the wife.
Because of the length of the relationship, any approach other than a global one would not do justice to the wife. To simply look at the financial contributions including the renovations would overlook the role the wife previously fulfilled.
On that basis, I would divide the non-superannuation assets on the basis of 72.5 per cent to the husband and 27.5 per cent to the wife.
Section 79(4)(e) requires the Court to contemplate (insofar as they are relevant) the factors set out in s 75(2) of the Act. Albeit the evidence is limited, I find that there is nothing to suggest that the wife cannot obtain employment. She has in the past. The husband has a technical specialty but his income is not unusually large. The disparity between the husband and wife in relation to income is not a significant factor when one takes into account that the husband has a number of years of financially supporting the children ahead of him. I can only conclude that the wife will not provide much physical or financial assistance to the husband.
Neither party has any responsibility to support other persons than the children.
The evidence in this case does not enable the Court to make findings as to the factors in s 75(2)(g),(h),(j),(k) or (m).
The terms of the contemplated orders will give the husband a significant advantage over the wife because of the disparity of capital that will result. That is a factor to be taken into account but the husband has to provide for accommodation of the children whilst the wife has only herself to contemplate. On the husband’s limited wage and absent child support, his greater capital entitlement becomes less significant. His financial statement suggests a much better financial picture but I have taken into account that there is to be a sale of most of the rent-producing properties. By the time his expenses are taken into account, his financial position is not as bright.
In all of the circumstances, I would not make any further adjustment for s 75(2) matters.
I intend that in respect of the superannuation that each party keep what they have. The contribution arguments just rehearsed equally apply to the superannuation entitlements. Although again there is a disparity, neither party can use these interests other than as long term investments. Each has time to make up retirement plans. It would not be just and equitable to the husband to require that he split his superannuation interests.

Conclusion as to property matters

For the reasons outlined, there should be an overall adjustment of interests in favour of the wife. Whilst the percentages are a mathematical approach, it is important that the Court contemplate the underlying value of what each party is receiving. Having determined not to make any s 75(2) adjustment leaving the adjustment to be based on the contributions as assessed, my view is that the wife should be receiving approximately $540,000 in assets. If there is money left over from the amount set aside for the tax, that should be divided on the same basis of the wife having 27.5 per cent.
In the division of the assets, the wife will receive the unencumbered property at F Street, Town D in the United Kingdom which I understand is currently tenanted by her parents. The sale of property will pay out the encumbrance on that property. The value to which I have attributed F Street is $290,745 in addition to which, the wife has a $9000 motor car. To satisfy an adjustment of approximately $540,000 out of this pool of assets, the wife needs to receive a further $240,000. Out of that however, she has to pay her share of the expenses of Dr L, Dr R and H Valuers as earlier indicated. I propose therefore that her entitlement will be reduced by $6738.
The husband sought a raft of orders many of which on their face appear confusing. There is insufficient money in the sale of the properties at A Street and B Street to satisfy the discharge of the mortgages encumbering those properties, the property at F Street, Town D, the sum required to set aside for the anticipated tax expenses and then a balance to meet the entitlement of the wife. In my view the appropriate way is for the sales to be completed as soon as possible and for the money currently held on trust by the solicitors for the husband to remain where it is until such time as the obligations are clear. It is conceivable that the sales of the two properties in the United Kingdom will take some time. Unfortunately that is a fact that I cannot do anything about but it seems to me that both parties should wait until that picture is clear before any cash is distributed to either of them. On the evidence before me, there is no indication of any urgency for either party to have access to money immediately.
The sale of the two properties in the United Kingdom also gives rise to the difficult question of whether to provide the wife with a lump sum in anticipation that the valuers are correct in their assessment or to anticipate the possibility of more or less being ultimately received in which case, the fair way it to apply percentages. Having regard to the fact that the wife has not participated in these proceedings in circumstances where I have found she could have, in my view, she must have been conscious of the chances that she was taking. The husband too is taking a chance here because he sought a lump sum be paid to the wife (albeit that I have considered he must pay the wife more than he proposed) so I have concluded that he had contemplated that same issue and is prepared to take the risk. To be clear therefore, notwithstanding well-known authorities, I have taken the view that the most pragmatic way of getting a result here is for the wife to have a set sum rather than a percentage because it seems to me that the risk falls greater on the husband as he has relied upon the valuers. If indeed these properties sell for significantly more than the valuers have very recently predicted, the only person who is likely to be then complaining is the wife and she may take whatever advice she is then able to obtain. Because of the difficult nature of the relationship between the husband and the wife, which would seem to have spilled over into the communications between the wife and the husband’s lawyers, it would seem that it is fairer that a set sum be ordered to avoid argument about whether the sales were conducted properly and whether such things as reserved prices were appropriate.

In addition to the orders sought, the husband sought that the Court provide that in the event that the wife did not sign any necessary document, then a registrar sign pursuant to s 106A of the Act on her behalf. Having regard to the orders for the sale and the nature of the various legal interests as declared by the husband, it is hard to see what documents would be required of the wife. In any event, the orders I propose direct the wife to comply and I would expect that she would honour the necessary obligations. I do not therefore propose to make an order under s 106A of the Act. The husband also sought orders in relation to signatories associated with banking accounts, chattels and bank accounts that were said at times to be in the names of the parties jointly. There was no evidence in relation to any of those matters and I do not therefore propose to make the orders absent the consent of the wife.
The husband also proposed that orders be made giving him effectively title to properties that he already owns. That is unnecessary but I will make an order that the wife relinquish any interest in properties that she will have no equitable claim against hereafter.

Costs

The husband sought the costs of the hearing before Macmillan J in December 2015 at which time, her Honour reserved costs. The husband now seeks that order for costs. His solicitor attended the hearing. Counsel conceded that the costs sought had been calculated on the basis of the cost agreement that the husband executed.
Section 117 of the Act provides that in proceedings under the Act, each party shall bear their own costs unless there are circumstances that justify a departure from that principle. If the Court is going to depart from the principle, it must take into account the matters set out in s 117(2A). Here, there was no logical reason why the valuation exercise should not have been undertaken. First, it was in the wife’s interests that the properties be valued. Secondly, albeit that the wife was unrepresented, she should have known that the Court might not accept evidence of a hearsay or opinion nature and therefore valuations were necessary. Whilst counsel for the Independent Children’s Lawyer gave an explanation of what was said on the day to Macmillan J, it really made no sense. In my view, the husband unnecessarily went to the trouble of having to get an order specifically to enable the Registrar to assist where the wife would not, but should have. In those circumstances, there is a justification for departing from the principle that each party pays their own costs.
No one particular factor in s 117(2A) is decisive. Here, the parties are not impecunious. The wife will have significant cash funds from the property settlement. The husband went to the trouble to obtain the order so that the wife could have that benefit. In my view, the wife should pay the husband’s costs accordingly.
Counsel for the husband sought costs on an indemnity basis but in my view, the circumstances here are not so exceptional to justify such a principle. (See Prantage and Prantage [2013] FamCAFC 105). Rather than have the parties go to the trouble of negotiating an agreed set of costs bearing in mind the matters to which I have earlier referred in relation to negotiating parenting issues and the wife’s conduct generally, it is more appropriate that I fix the costs based upon what I have assessed from the work involved before Macmillan J. In my view, the appropriate figure is $3000 and I shall order the wife pay that accordingly. That sum shall be paid out of the entitlement of the wife in the property settlement.

I certify that the preceding One Hundred and Twelve (112) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 January 2016.

Associate:

Date: 22 January 2016

[2016] FamCA 14

22 January 2016

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Costs

Remedies