Timms and Timms (No.2)
[2017] FCCA 2312
•6 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TIMMS & TIMMS (No.2) | [2017] FCCA 2312 |
| Catchwords: FAMILY LAW – Entrenched parenting dispute involving serious and florid mutual accusations by each parent – new evidence suggesting mother’s case as previously presented was substantially untrue – psychosexual report on father establishing absence of risk of abuse – orders made as sought by the Independent Children’s Lawyer – property dispute over tiny property pool – matrimonial home to remain with the mother – father to retain his superannuation. |
| Legislation: Family Law Act 1975 (Cth) ss.60CC, 75 |
| Stanford & Stanford (2012) 247 CLR 108 |
| Applicant: | MR TIMMS |
| Respondent: | MS TIMS |
| File Number: | MLC 6049 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 13 & 14 September 2017 |
| Date of Last Submission: | 14 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 6 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Timms, in person |
| Counsel for the Respondent: | Mr Howe |
| Solicitors for the Respondent: | James McDermott Solicitors |
| Counsel for the Independent Children’s Lawyer: | Mr McLeod |
| Solicitors for the Independent Children’s Lawyer: | Cathleen Corridon & Associates |
ORDERS
The parties have equal shared responsibility for the children [X] born (omitted) 2008, [Y] born (omitted) 2010 and [Z] born (omitted) 2011 (“the children”).
The children live with the mother and spend time with the father as follows:
(a)each Saturday from 10 am to 4 pm; and
(b)Such other times as agreed between the parties.
On or before 20 October 2017, solicitors for the Respondent are to file and serve any further submissions and a minute of proposed property orders.
On or before 3 November 2017, the Applicant is to file and serve any material in reply.
IT IS NOTED that publication of this judgment under the pseudonym Timms & Timms (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
No. MLC 6049 of 2013
| MR TIMMS |
Applicant
And
| MS TIMMS |
Respondent
REASONS FOR JUDGMENT
Introductory - The Issues to be Determined
On 14 September 2016, I issued judgment in this matter. These reasons should be read in conjunction with those former reasons. The position then was that I had determined, as best I was able, the factual controversies between the parties, which included, as I recorded in the judgment, a number of extremely florid and off-putting mutual complaints and assertions between the parties.
I then required the views of the two family report writers about the appalling correspondence sent by the father to the mother before proceeding further. As things transpired, it emerged that the preferable way to proceed was to obtain a psychosexual risk report from Dr S, and this has been done.
The issues that now confront the Court are, therefore, so far as parenting issues are concerned, with whom the children should primarily live, whether there should be sole parental responsibility or joint parental responsibility, and what time the children should spend with the non-primary resident parent.
The father seeks that there be a change of residence so that the three children with whom we are concerned, [X] born (omitted) 2008, [Y] born (omitted) 2010, and [Z] born (omitted) 2011, live with him and spend time at his discretion, but it would appear frequently and probably daily, with the mother. He seeks an order for joint parental responsibility.
The mother seeks that the children live with her and spend supervised time with the father each Saturday from 10 am until 4 pm. The mother also seeks an order for sole parental responsibility.
The Independent Children’s Lawyer seeks that the children spend each Saturday with the father unsupervised from 10am until 4pm and that there be an order for joint parental responsibility, the children continuing to live primarily with the mother.
So far as property matters are concerned the pool is tiny. The former matrimonial home has been valued at $225,000 and has a mortgage of marginally over $210,000. The husband has superannuation of some $8000 and, in any event, there are caveats lodged by Victoria Legal Aid in respect to both the husband the wife’s legal fees. The husband’s legal fees are said to be in excess of $14,000, and the wife’s are not disclosed but must be significant.
The husband seeks that the wife pay him $100,000 to reflect his contribution to the property or, alternatively, at the very least to return to him the financial benefit of the First Home Grant and various other ancillary payments detailed in his affidavit material. The wife seeks that she retain the matrimonial home and all the equity in it, with the husband to sign his share of the property over to her. She seeks a superannuation splitting order such that she retain all of his superannuation.
For the reasons that follow, I am going to order that there be joint parental responsibility, and that the children live with the mother and spend time with the father each Saturday from 10am until 4pm unsupervised. I will also order that the matrimonial home be vested wholly in the wife, but that the husband retain all of his superannuation. As counsel for the wife pointed out in final submissions, thought will need to be given to the form of orders to be made to reflect this property division.
The Previous History of the Matter
As earlier indicated, I gave judgment on 14 September 2016 following a three day trial on 18, 19 and 20 July 2016. These latter dates are important for reasons that will become apparent. In the judgment I was, and I expressed my regret then and repeat this now, extremely critical of the three witnesses who were called, of whom the father and mother were two. They were appalling witnesses. I refer to and repeat by reference all the matters in my earlier reasons for judgment, but I would point to the following passages as being of relevance:
a)At paragraph 3, I noted that I was going to order counselling for the parties and the children, but that if the mother sabotaged the counselling process it was possible, if not likely, that an order for change of residence would be made;
b)The mother then supported (see paragraph 90) that the children should see the father on Saturdays from 9 am until 3.30 pm on an unlimited time basis;
c)At paragraph 150, I recorded the Independent Children’s Lawyer’s submission that:
the children have to see the father, and it was necessary for there to be a ‘Sword of Damocles’ over the mother. There was an obligation to support the relationship with the father, and the mother needed to understand she was being given one last chance;
d)At paragraph 225, I recorded:
As Ms E observed in her earlier report at paragraph 86:
‘If this matter was left to the mother, the children would never speak to or spend any time with the father again. She is likely to find it difficult to come to terms with facilitating time with him’;
e)At paragraph 228, having noted at paragraph 227 the difficulties associated with an order for equal joint parental responsibility given the parties’ poor communication, I observed:
The reality is that if I make an order for sole parental responsibility, the father will be completely excised from all decision-making in relation to the children. If in the ultimate he is to have a relationship with the children, and Dr R’s report is clearly to the effect that this is desirable, then as a matter of practical politics, equal shared parental responsibility will have to be ordered.
The Materials Filed by the Parties Since the Original Judgment
The Materials Filed
On 17 October 2016, the father filed an application in a case. It is not necessary to traverse either the matters raised or the materials in his affidavit in support, save to note that the father objected to being the subject of a psychosexual risk assessment and wished to re-agitate the finding in my original judgment that he was the author of the letters that gave rise for the need for the assessment.
On 19 April 2017, the father filed an affidavit referring to photographs he had presented to the Court which purported to show him in a warm and affectionate relationship with his children in 2016. The father deposed to the fact that at the conclusion of the three day hearing in 2016, the respondent through her legal representatives had offered him time with the children, which he had accepted.
On 21 April 2017, the mother filed an affidavit in response and asserted at paragraph 2:
After the final hearing in this matter I allowed the applicant father to have unsupervised visits with the children as I was given legal advice to do so.
The mother deposed that this informal arrangement began on 25 July 2016 but was ended by the mother on 20 February 2017. The reasons given by the mother for the cessation of the time were an assault by the father on [Y] following which she suspended time for two weeks, and further, on another occasion (no dates were given for these matters) the father was said to have snatched an iPad from [X] for no reason and to have belittled her, describing her as “stupid” and “mental”.
Further, it was asserted that the father during time with the children was constantly on his phone (occupation omitted) (his occupation) which interrupted the spend-time regime. Finally, it was put that the father would randomly turn up in front of the mother’s home.
The father’s affidavit filed on 6 June 2017 essentially consists of complaints about the supervised time regime organised through Ms J that he had undertaken. It is clear from Ms J’s affidavit filed 17 August 2017 that on any view of the matter, that time did not go well. It is unnecessary for these purposes to decide precisely whose fault that was.
An affidavit filed by Mr F on 30 August 2017 is wholly supportive of the father but is likewise entirely partisan on its face. No party sought to cross-examine him, but given the terms of the affidavit that is not surprising.
On 30 August 2017, the father filed a further affidavit in which he indicated that he seeks a change of primary residence for the children. He seeks that the mother pay him $100,000 to reflect his contributions between 2009 to 2013 towards the matrimonial home. I note that the father again denies all family violence despite the earlier findings of the Court. I note further that he deposed to the spend time regime between July 2016 and February 2017, but I finally note that at paragraph 52, he concedes that the mother has always been the primary carer of the children.
The mother’s affidavit filed 6 September 2017 refers to the value of the matrimonial home as $225,000 with a mortgage of marginally over $210,000. She deposes to the father’s superannuation of $8,404 and refers to caveats filed by Victorian Legal Aid in respect to legal fees of both the husband and the wife. The wife says she can pay $1,400 per month in mortgage repayments and exhibit CNT4 appears to suggest that this is so. How this is so is confusing given that exhibit CNT5 to her affidavit shows her income in terms of statutory benefits as being $350 per week. As with so many matters in this ongoing proceeding, it will not be possible to know exactly where the truth of some of these assertions lies.
The Report of Dr S
Dr S’s report is annexed to his affidavit filed 10 May 2017. I refer to the whole of the report to which I have obviously had regard. I note at paragraph 41, the report observed:
Mr Timms’ presentation on the PDS and MMPI-RF2 revealed positive impression management and some self-deceptive enhancement, indicating unreliable self-report.
Having noted that there was no collateral information to determine whether the father had sexually abused [X] at age four (an allegation I expressly rejected in my earlier judgment) the report went on at paragraph 43 to assert:
In this matter, the self report of Mr Timms cannot be considered as reliable. Data from the PDS and also the MMPI-2RF led to the same conclusion that Mr Timms’ self-report in this context was unreliable. This fitted with his presentation in the clinical domain. I note that these and other similar comments have been made in the Court judgment regarding the father. These factors raised more significant concerns than normal as the result that was identified in the PDS, MMPI-2RF, and in the clinical evaluation. Such behaviours may be considered relatively common in family law proceedings. In this matter, due to the allegations against him, this pattern of responding should be seen as problematic. Individually, the results of this evaluation do not necessarily point to an inevitable conclusion that the father is a significant risk to the children, either his psychological functioning or his psychosexual functioning.
Nevertheless, there are qualitative and other issues of concern in this domain, including extremely negative attitudes towards the mother, his unreliable self‑report and what appears to be personality difficulties that do not allay the concerns that are raised within allegations against him. While it is unlikely to be determined whether or not there is substantial psychosexual risk, there are more general concerns about the father’s personality functioning in the context of the children and his ex-partner that raise concerns about future time and, as such, a court may err on the side of caution and move to supervision or insubstantial tendency of ordering time.
The report went on to note that the father might benefit from group and individual education and clinical input focusing on parenting post‑separation to address his very negative attitude to the mother. I would interpolate and say that the father’s historical resistance to any such assistance, based on his perception that he does not need it, is not likely to suggest that any orders to this effect would either be adhered to or embraced in any meaningful way by the father himself.
The Evidence and Submissions at Court (Taken From My Notes)
The father, who represented himself, indicated in his opening that he sought that the children live with him. He said the mother was to have access for two days per week on Sunday from 9 am until 5 pm and Tuesday from 3.30 pm to 6.30 pm together with time as agreed. He sought an order for equal shared parental responsibility. In terms of property, he sought a fair share of his interest in the matrimonial home claiming $100,000 of $225,000 valuation.
The father adopted his affidavit of 30 August 2017 as true and correct.
The Father Under Cross-Examination by Counsel for the Mother
The father confirmed that the mother had always been the primary carer for the children. He had turned his mind to the effect of changing that. He said the children would be safe from sabotaging and the like. Other days were to be agreed. He said he had nothing and that she had everything. He said the children would have access to the mother whenever they wanted.
When it was put to him that there was no history of agreement between the parties the father replied that this was nothing to do with him. He said, “She bans me totally”. He said, “I know how much the children need their mother”, but the mother does not make efforts for the children to spend time with him. He conceded that time had taken place between July 2016 and February 2017. When it was put to him that time ceased because he had hit [Y] he said that this never happened and was one of the mother’s excuses.
He said the mother is the mother. The children need their mother. He does not wish to exclude her. He conceded she was better equipped to help [X] through puberty. He said that as a father he could also provide care and that the mother would not be totally cut out. When it was put to him that change of residence would be significant the father replied that this would be hard for the children but it was hard for him now. Questioning about the time organised through Ms J, in my view, took the matter little further save to indicate, as earlier put, that it did not go well. The father conceded that Ms J had found him difficult and withdrew her services.
On property matters, the father agreed that the matrimonial home was worth $225,000 and the mortgage $210,000. He said he made the money. He conceded he had the greater earning capacity and that VLA had placed caveats on the property. His own fees were approximately $14,000. He said the asset pool would be negative if VLA was repaid. He said he had been entitled to the First Home Grant and an exemption from stamp duty and he sought these matters be repaid. He asserted he would be paying rent for the rest of his life.
The Father Under Cross-Examination by Counsel for the Independent Children’s Lawyer
The father confirmed that time had started in July 2016. This was from the first weekend after the evidence was finished and took place during daytime only. Times varied but, for example, would be from Sunday 1 pm until 9 pm. This regime lasted from 25 July 2016 to 20 February 2017. The mother was there almost every time but was not supervising. She did stop time for two weeks and the father thought this was in November 2016.
When it was put to him that the judgment was issued in 2016 but time nonetheless continued, the father said “yes, surprisingly”. He described this as a honeymoon period. He denied having hit his son on any occasion and had never hit any of his children. When questioned about the iPad incident with [X], the father put that [X] was distracted by her iPad and he told her to concentrate on her homework but she refused so he took the iPad from her.
He denied spending excessive amounts of time on the phone in the presence of the children about his work, but he said he did sometimes (occupation omitted) after hours. He confirmed that he would finish his work at 5 pm and that the children’s bus drops them back from school at 4 pm. He said he had never turned up at the mother’s home if not prearranged.
He said that time stopped in February 2017 following a discussion. The mother wanted him to withdraw his application before the Court and enter into a private arrangement. He said he would have to think about it and she was not happy. He wanted court orders. He asked the Court to infer, in effect, that this was the reason why time ceased.
The father conceded that time with Ms J had been a disaster. He had not seen the children since 14 May 2017 and his only option was to keep coming back to court. He was adamant that he was not prepared to accept supervised time as this was not necessary. He said he could not cope with supervised time any more. He said he needed his children and the mother could supervise. He did not accept waiting for a contact centre.
The children should live with him and the mother would have all the access in the world. He said words to the effect “there will be power”, which I took to mean that if the orders he sought were made, he would be in control of the dynamic between the parties.
The father tendered exhibit A1 which are photographs taken on 24 July 2016. They appear to show the father happily with the children and, indeed, with one of their older half siblings. He saw the children two to three times per week for a few hours. He sought that the children live with him and said that he would not seek those orders if other orders had been able to work. He then confirmed expressly, however, in response to a question from Counsel that he would regard 10 am until 4 pm each Saturday as okay. It did not have to involve overnight time.
He lives in two bedroom accommodation which is furnished for the children in (omitted). He had no objection to the children staying at (omitted) School in (omitted). The children like their school and he is happy with it also. He and the mother do not communicate at the moment. They last spoke on 20 February 2017.
The Evidence of the Mother
The mother adopted her affidavit sworn 6 September 2017 as true and correct.
The Mother Under Cross-Examination by the Father
The mother confirmed that she has had legal advice from her lawyers about the father spending time with the children. She said her lawyer told her she could allow the children to see their father regularly. She had agreed with her lawyer that she would allow the children to see the father every Sunday at the lawyer’s, and she said that she was the person who had taken the photograph exhibit A1.
When asked why she ceased access in February 2017, the mother said the father was always nervous and stressed. He was (occupation omitted) while the children were with him. On one occasion, he hit [Y] and another, he snatched his computer from [X]. He never tried to see how [X] was going with her counsellor. The mother had agreed that the father attend parent-teacher nights.
When it was put to her that the father and mother had had an acceptable relationship for seven months, she said this was very difficult. She was trying to keep a relationship going between the father and the children. She repeated that she heard the father call [X] “stupid” and “mental”. It was a difficult seven months because she doubted the father’s relationship with the children at the time. The father was caring for his job, not the children. She was always there and did not leave the children with him on their own. The bus brings the children home at about 4 pm and she cannot fight in front of the children.
The mother confirmed that her health was okay. She is seeking an order for sole parental responsibility. The children are at school from 7 am (when the bus collects them) to 4 pm (when the bus returns them). She said she paid the mortgage. She was adamant that separation took place in November 2011. She conceded that the father had withdrawn $7,000 to pay mortgage arrears on one occasion.
The Mother Under Cross-Examination by Counsel for the Independent Children’s Lawyer
The mother confirmed that she was at court in July 2016. She confirmed a photograph taken on 24 July 2016, tendered as part of exhibit ICL1. This was [X]’s birthday on the (date omitted). She conceded that a photograph taken at the school on 24 November 2016 showed the father’s hand on her shoulder. She said she always smiles for photographs.
It was put to her that following the evidence at court in July 2014, merely four days later, a birthday party was organised. The mother conceded that this was so. Counsel put it to the mother that the children were okay with the father if she permitted them to be so, and noteworthily, the mother replied that he did not cooperate. The mother said time with the father was acceptable with supervision but not by her as she does not want problems. She said he had a fight with the supervisor.
The Evidence of Dr S
Under questioning from Counsel for the Independent Children’s Lawyer, Dr S confirmed he had reread his report and stood by it. He had not met the wife because he was not asked to. The father’s self‑report was not reliable. Dr S noted that the results of testing suggested the father tends to present himself in a naively positive way. This did not mean that everything he said was untrue. He was just not self-critical.
When taken to the photograph in July 2016 as part of exhibit ICL1, Dr S conceded that this image did not fit the allegations in the case. He accepted that the photograph taken on 14 August 2016 showed a normal picture of parents with their children. He noted that the photograph on 24 November 2016 appeared to show the father’s hand on the mother’s shoulder and appears to suggest a positive relationship.
Dr S confirmed that in paragraph 44 of his report, he had not insisted upon supervised time. He confirmed, in terms, that the essential features of psychosexual risk were simply not there. There was no clear indication the father had behaved inappropriately. He had a very negative view of the mother and this might be interrelated with the litigation.
When cross-examined by the father, Dr S explained what he meant by self-deception and impression management, which are technical terms. Impression management is how people present to others. Self-deceptive enhancement is more subtle. An individual with this tends to be unself-critical.
Cross-examination moved to a series of assertions by the father that the testing conducted by Dr S might be invalid because of cultural nuances. Dr S confirmed that he had interviewed (ethnicity omitted) and people of (omitted) extraction previously. He said the score came out from answers to tests. While the PDS is normed on Americans, I did point out to the father that endeavours to subvert Dr S’s expertise might lead to a conclusion that Dr S’s view that he did not represent a psychosexual risk might be open to doubt. Cross-examination ceased shortly thereafter.
The Mother on Further Examination-In-Chief
Counsel for the mother sought that she be re-called to address matters arising out of the previously untendered photographs constituting exhibit ICL1. No objection was taken by either the father or Counsel for the Independent Children’s Lawyer to this course.
The mother said that she had been in court four days before the photograph on 24 July 2016. She said that while she was in Court, the Independent Children’s Lawyer told her to push the children’s lawyer to see the father. She invited the father to attend. She said that her lawyer (referred to as Mr [Y]) advised her that it was better to encourage time with the father. She said she was holding [X] in the photograph taken on 24 July 2016 and she tried to get the children close to the father. She said they were all acting in these photos. She said that what the solicitor told her had frightened her.
I should interpolate and say that it is quite apparent to me at least that the mother’s hands were not, in fact, holding her daughter, [X], in the photograph taken on 24 July 2016, but are rather clearly raised in some form of salutation to the person who took the photograph.
The Submissions of the Parties
Counsel for the Independent Children’s Lawyer
Counsel noted what he described as the telling factor which was the time that was spent after trial until February 2017. The children are at the (omitted) school, and their time there is from 8.30 am to 3.30 pm (plus time on the school bus each way). The father seeks a change of residence and the mother seeks to reintroduce supervised time.
The Independent Children’s Lawyer’s position had changed during the currency of the hearing. Equal shared parental responsibility was supported. It was submitted the children should live with the mother but that there was no reason for the father’s time to be supervised. The father was happy with Saturdays from 10 am until 4 pm every Saturday if it was not supervised, together with time as agreed.
Counsel submitted the father was not a true candidate for residence. All he really wants is to see his children. The wife’s affidavit concedes the time spent between July 2016 and February 2017. The photographs on 24 July 2016, it was submitted, showed a perfectly happy family occasion. This was four days after the conclusion of a trial in which each party had made the most appalling accusations against the other.
It was submitted that the mother was still a terrible witness but that the father had become slightly better. [X] was poking her tongue out in this photograph and was clearly very happy. The photograph on 14 August 2016 shows the children having a great time and the mother, it was submitted, grinning from ear to ear. The photograph of 24 November 2016 shows a happy family. Then time stopped.
It was submitted that the mother’s answers about these photographs were unresponsive. The children do have a positive relationship with their father, and it was submitted that the Court was being used to carry out what, in effect, was the mother’s aims in the marital dispute. The mother was present all the time the father spent and there had been no overnight time. It was submitted the parties could communicate when they wished to. The father, it was submitted, “needs more work” but the children would benefit from a relationship with him.
Dr S’s report indicated that supervision was not necessary. There had been visits up to four times per week in the period from July 2016 to February 2017. Time was stopped for only two weeks when the alleged slapping incident took place.
Submissions of Counsel for the Mother
The mother seeks an order for sole parental responsibility. The presumption is rebutted because of family violence previously found by the Court. Counsel surmised that the cultural standards might operate upon the way in which each of the two primary witnesses gave their answer. It was submitted that it was possible that they did not wish for cultural reasons to respond directly to direct questions.
Counsel noted that the husband in the morning had wanted to cross‑examine Dr S about the soundness of mind of the mother. It was submitted that the father was of the view that the mother was of unsound mind and would therefore have no faith in the mother’s decisions. He will say he knows best because the mother is not of sound mind.
It was conceded that joint parental responsibility might be possible in relation to medical issues. Counsel noted that the father had converted to (religion omitted) from being a (religion omitted), but that the children are to remain at their present school. It was submitted that residence should remain with the mother. It was noted that the father had been unable to articulate the mother’s parenting skills.
The Court could have confidence the mother would foster the relationship between the children and the father as she did so from 24 July 2016 until February 2017. [Y] had been struck and [X] had had the computer snatched from her. Court contact was ordered by the Court and took place until the husband ceased it because of his disagreement with Ms J. The mother agrees that time should take place every Saturday from 10 am until 4 pm but says it should be supervised. The father has assaulted [Y] and behaved aggressively to [X].
Turning to property matters, Counsel noted that the pool was approximately $25,000 in total. It was fanciful to require a payment to the father of $100,000. Their contributions could reasonably be assessed and should be assessed as equal. There are three children to be raised, and the mother’s section 75(2) needs were clearly greater.
The mother seeks 100 per cent of the husband’s superannuation. He can accrue further superannuation in time. It was submitted she would be able to access this superannuation through hardship provisions. She seeks that the property be signed over to her. The two caveats by VLA are noted and in the husband’s case of some $14,000. The value of the mother’s caveat is uncertain and the property may need to be sold.
Counsel submitted that the form of orders to be made in the event of sale would require care to ensure that the mother was not burdened with all the debt in the event that this occurred.
The father in his final submissions returned to the alleged incident of sexual abuse of [X] which I had already previously dismissed. He said that the children were alienated by the mother. He noted the seven months of access till February 2017, allegedly on the basis of advice from her lawyer. He noted that he had not agreed in February 2017 to discontinue his court case. This had led to the cessation of time. He said that the mother would do as she pleased and he would lose access. Her behaviour was blackmail.
He denied assaults on his child or aggression to his daughter. He said that he should have custody and this would help the mother to get work. The change of residence was preferable to provide shared access to the mother. The mother had only provided the children as she was scared of a change of residence. There had been no final order made to rebuke the mother for her conduct. The children should spend time as agreed with the mother, and this would be daily and hourly time. There was no need for supervision and he had not been aggressive to Ms J.
In respect to property matters the father noted the value of the matrimonial home. He had paid the mortgage until final separation in April 2013 and had on one occasion withdrawn his superannuation to pay arrears. It was the first home he had ever owned and he had lost the First Home Grant. He was now renting. He noted the mother sought 100 per cent of his superannuation and confirmed that he seeks $100,000 property settlement from her. In what I understood to be something of an alternative submission, he said that he wished to have his $7000 superannuation back and the First Homebuyers Grant.
The Credit of the Parties
I regret to have to say that neither of the two witnesses impressed me any more favourably in this recent hearing than they had done in the previous one. The father answered a number of questions extremely evasively. His answers about the difficulties he had with Ms J were entirely unconvincing, and I was struck by the extent to which his answers to questions about the children were wholly self-oriented. He is plainly far more concerned with his own needs and his own emotional need for contact with his children than he is with any objective understanding of their best interests.
The mother was unresponsive in many of her answers and remained every bit an unconvincing a witness as she was in the first proceeding.
Counsel for the mother submitted that the apparent reticence of both the primary witnesses to answer direct questions directly might derive from their ethnicity. There is no evidence before the Court to support this generalised assertion. Indeed, to adopt it holus-bolus would, in my opinion, be to give weight to some form of racial profiling that in my view would be inappropriate and unattractive.
Furthermore, having been hearing cases as a judge over a decade, I have heard numerous witnesses of (omitted), including (omitted), parties whose evidence was in no wise remarkable. Both Mr and Ms Timms are, I regret to say, witnesses who are extremely unconvincing on any view of the matter.
Findings about the facts
What makes this case so truly astonishing, as in effect Counsel for the Independent Children's Lawyer submitted, is that following a three day trial in July 2016, during which the parties were unrestrained in making the most florid vituperative assertions about each other, only four days later they sat down with the children to have a perfectly friendly birthday party. This was before judgment was even issued seeking to determine where the truth lay in relation to their competing accusations. Even after the judgment was handed down in September 2016, time continued on a regular and frequent basis until February 2017.
The photographs that constitute exhibit ICL1, in particular, simply cannot be set aside. It is not possible to avoid the conclusion that the mother has utterly misrepresented her position throughout. I accept the submission of the Independent Children's Lawyer that she has used these court proceedings for her own ends in the matrimonial struggle with the father.
Even if, as is perhaps possible, the wife formed the conclusion at the end of the trial that she was at risk of losing custody of the children if she did not foment a relationship with the father (the Independent Children's Lawyer had submitted that a ‘Sword of Damocles’ should hang over her), I note that she has not called the lawyer whom she says gave her the advice to act as she did. It is possible that the mother only moved to allow the father time with the children because of such a fear. However, the photographs simply do not support, to any significant degree, this version of events. The photograph taken on 24 July 2016, even if the mother was dissimulating as she says, shows [X], a child alleged to have been estranged from the father at that time, entirely relaxed and happy in his presence.
Time continued uneventfully enough through to February 2017. I accept the mother's assertion that she stopped time for two weeks, more probably than otherwise in November as the father says, because he slapped the child. I have heard the father's evidence about this point and I do not believe it. What is noteworthy, however, is that time only stopped for two weeks and then recommenced. The assault cannot have been a significant one, although of course any assault is to be denounced.
I also accept the mother's account that the father may have snatched away an iPad from [X], and I accept that he did so because she was not attending to her studies. I further accept that the father may well have spent more time on the phone in his (occupation omitted) than he is prepared to concede, but since the mother appears to put this as an ongoing and unceasing problem, and since it did not stop time from July 2016 until February 2017, it simply cannot have been the sort of extensive difficulty that the mother asserts.
Likewise, any undue and excessive attendance by the father at the mother's home cannot have been of any great moment if it took some seven months to operate.
As I find, notwithstanding the partial truth of the mother's assertions, the real reason that she stopped the father's time in February was because he was not prepared, as he has indicated, to cease the Court proceeding.
Both these parties clearly see the outcome of this proceeding as being one that is likely to empower them in their interpersonal dealings. Each of them seek to obtain advantage to that end that is totally unrelated to any objective consideration of the best interests of the children. I do not precisely understand the dynamic that obtains between the father and the mother. Historically, they have separated and reconciled. Frankly, I would not be in any way surprised were they to reconcile again. They have both impressed me as being volatile, immature and insightless. They are also selfish.
The outcome that the father seeks is plainly designed to disempower the mother whom he feels is over-empowered. The mother has plainly used the Court process capriciously and dishonestly to advance her ends. If even a tithe of what she said during the original proceeding was correct, she could never have allowed the father to spend the time that he did spend from July 2016 until February 2017 with the children, even allowing that she or her daughters are present at all times, and that the time did not involve overnight time. I repeat Counsel for the Independent Children's Lawyer's submission. The photographs simply do not tell the story that the mother put in her case. This was Dr S's evidence also and it is patently true.
I should interpolate and say, as I should have earlier, that Dr S was a professional witness giving evidence within his sphere of expertise. Not only was he palpably honest in the answers that he gave, but his expertise and conclusions were not in any way ruffled by the questions put to him. It follows that I must accept, as I make it plain I do, that the father does not represent a psychosexual risk to the children. That was Dr S's evidence in court and I accept it.
Against this background, I come now to the statutory pathway set out in my previous judgment. It is not necessary to repeat it.
Equal shared parental responsibility
True it is that there has been family violence in this case. As I observed in my earlier judgment, there has been some but far less than the mother has asserted.
Nonetheless, and admittedly on balance, I think that there should be an order for equal shared parental responsibility as being in the best interests of the children. The Independent Children's Lawyer makes a submission to this effect, albeit reluctantly. I share that reluctance. Nonetheless, it is clear that if such an order is not made, the father will be excised from all decision making in the children's lives. Given that he is to have an ongoing role in their lives, and given that it is in the children's best interests to have a meaningful relationship with him, it is clearly desirable that there be shared parental responsibility.
I make such an order notwithstanding that I have concerns as to the parties' capacity to deal in a courteous or sensible way with one another. The father does have the most demonised views of the mother, which in my view, notwithstanding the trenchant criticisms this judgment reflects, are largely misconceived. I repeat he is a man of little insight. He will not be minded to change that mindset. Nonetheless, these children have two parents, both of whom will have a role in their lives, and it is in the ultimate in the children's best interests that each parent have a responsibility for long term decisions about their wellbeing.
Equal and/or substantial and significant time
No one has suggested equal time is appropriate, save the inferential assertions made by the father that were he to prevail, he would provide substantial time with the children on something amounting to a daily basis.
I do not think that even if I was to grant the father the orders he seeks, he would provide the mother with anything like equal time. From what he has said in terms, it is plain that he regards an order for primary residence with him as being essentially a power tool to use to control the mother according to his wishes. It is not an attractive prospect.
In the event that the children do not live with the father, he has expressed - and in plain terms - that he is prepared to accept time with his children from 10 am to 4 pm each Saturday as an acceptable time regime on an ongoing basis. Given that, for the reasons that will follow, I am going to order that the children continue to live prominently with their mother, it is immediately apparent that the 10 am until 4 pm regime is appropriate. It does not constitute, of course, substantial and significant time within the meaning of the Act, but given it is what the father is prepared to embrace as satisfactory, and given the lingering uncertainties about overnight time in any event, substantial and significant time is not appropriate.
The children's best interests - the primary considerations
This is, as I have already indicated, an extraordinary case. There has been family violence and there might be thought to be an ongoing need to protect the children against the risks of family violence given the father's view of the mother and some of his past behaviour (for example the letters sent to the mother, his slapping of [Y] and the like). What stands against that consideration, however, is the obviously good and relaxed family relationship shown by the photographs. The photographs are contemporaneous with the appalling assertions made by each of the two parents against each other in proceedings that have finished as recently as four days beforehand.
In principle, everyone agrees that it is in the children's best interests to have a meaningful relationship with each of their parents, and the photographs constituting exhibit ICL1 show that in fact they do. As Counsel for the Independent Children's Lawyer correctly observed, the parties can make it work if they want to. The orders to be made will ensure that they have no alternative.
The secondary considerations
Section 60CC(3)(a)
Any views expressed by the children in the past must be approached in the light of the photographs tendered. It is clear that they have an excellent relationship with their father and their mother.
Section 60CC(3)(b)
The remarks just made above in my view adequately deal with this subsection. They have an excellent relationship with each of their parents, save to the extent that it is sacrificed to the immediate tactical personal interests of one or other of their parents.
Section 60CC(3)(c)
No criticism can be made of the mother in this regard. The father's refusal to spend time with his children if supervised is, in my view, all bound up with matters that are wholly self-centred. He denies the need for supervision because he denies that he has ever misconducted himself. In some important respects I have upheld his denials but in others not. His insistence, so to speak, that he would rather not see the children at all than be supervised is illustrative of his insightless, immature and self-centred personality. Nonetheless, since I do not believe that supervision is necessary, this particular difficulty will dissipate.
Section 60CC(3)(ca)
As I understand it, the father continues to pay little, if anything, by way of child support, but since that is a dispute is for another field, it is not one to which I given any great weight. Otherwise the mother has plainly fulfilled her obligations.
Section 60CC(3)(d)
The father himself concedes that the mother has always been the primary carer of the children, although there was a point during his evidence before the Court where he appeared to resile from that position to an extent. I am quite satisfied that the children have always had a primary carer relationship with their mother. There is simply no proper basis to change that. The effects upon the children would obviously be likely to be profound. This conclusion is only reinforced by the fact that the father has made it plain that he sees a change of residence primarily as necessary to control the mother. That is not a child-focused approach.
Section 60CC(3)(e)
Once the final orders in this case are made and provide a regime which the parties will have no latitude not to follow, there is not likely to be any practical difficulty or expense in the children spending time with their father.
Section 60CC(3)(f)
There is no question that the mother can, for all her faults, provide for the children's needs. She has done so all their lives. Her failure to foster a relationship with their father, waxing and waning as it has done from time to time, stands against her. Nonetheless, her obstruction of this relationship seems to me to owe more to her own personal dissatisfaction with the father than with, as it were, a desire objectively to remove him from their lives. It is to be hoped that final orders will bring this difficulty to an end.
The father is not as I find a person well equipped to provide for the children's needs. Counsel for the Independent Children's Lawyer was correct to submit that he is not a candidate for primary residence. His behaviour when with the children, as recorded in my earlier judgment, suggests a great affection for the children, but one which is not founded upon a keen understanding of the children's needs and sensitivities. Rather, the affection is to do with his own need for the role as a parent as he sees it.
Section 60CC(3)(g)
This is an important section, but in the circumstances of this case, I have already made sufficient reference to the parents' personalities and lifestyle.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
Both parents, but the father more so, appear to an extent to regard the children as chattels to be fought over rather than little human beings whose best interests must come first. There is a pronounceably proprietary element to the father's affection towards his children, and I note that the mother has been prepared use the children as pawns in her various marital conflicts with the father. This is very regrettable on both sides, but it should be remembered that for good or ill, these are the parents that the children have.
Section 60CC(3)(j)
I have already dealt with family violence in my earlier judgment and again in this one. These matters are not to be ignored and are important, but must be seen in the overall context of the case.
Section 60CC(3)(k)
My intention has not been drawn in this most recent proceeding to the extent to which there may or may not be any family violence orders extant. If they do exist they do not appear to take the matter further.
Section 60CC(3)(l)
If ever there was a case that needs to come to a final disposition this is it. The games both these parties play must come to an end. I am quite satisfied that the orders sought by the Independent Children's Lawyer which I propose to make should bring this matter to a final conclusion.
Section 60CC(3)(m)
There are no other additional matters.
Conclusion on parenting issues
In truth, the battle in this Court has in part proceeded on a completely untruthful basis fomented by the mother. Her hysterical allegations against the father in the three days of trial last year are totally gainsaid by the photographs that have now been produced. Her explanations are totally unconvincing.
The father's desire for change of residence is not as I find sincere, save to the extent that it would empower him in his dealings with the mother. The children have always lived with their mother as primary carer and clearly should continue to do so. The father's accommodation is at best barely supportable for a residence application in any event. Taken all together, the matters to which I have referred make it quite clear that the children should continue to live in the primary care of their mother.
Nonetheless, once that matter is disposed of, the father was in fact prepared to accept as appropriate an arrangement from 10 am until 4 pm on each Saturday, and that is the time urged by the Independent Children's Lawyer. In the circumstances, that order should be made.
Nothing has been said about special days or other matters. I will give the parties an opportunity to make any further submissions about these matters that they may be advised.
Property issues
It is common cause that the matrimonial home is worth $225,000 and is encumbered by a mortgage of over $210,000. The husband has superannuation of some $8000. No one has pointed to any other property of the parties.
This is one of the many cases posited by the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108, where both parties want the property adjustment. Their circumstances have changed since the collapse of their marriage and it is plainly appropriate that there be an adjustment.
It is sufficient, I regret to say in short form, that the father's suggestion that he be paid $100,000 is utterly risible. True it is that he may have paid the mortgage between 2009 and 2013, but there is simply no money there to pay him.
Although the amounts involved are smaller, the same is true of his commitment to the First Home Owners Grant, any monies forgiven by way of stamp duty, and the $7,000 that I accept he committed to arrears during a prior reconciliation.
The mother has three small children to bring up. Her opportunities for work are going to be limited. Her English is insufficiently good for her to be able to give evidence without an interpreter. Her chances of future employment must be extremely questionable for many years to come.
By way of contrast, the father is in regular employment as an (occupation omitted) and it is reasonable to suppose that his income stream will only grow over time. Both of these parents are still relatively young.
In my view, it is just and equitable that the mother should retain the family home if she is able to do so. As I have already indicated, quite how she is able to pay the mortgage on the statutory benefits that she says she receives escapes me. Nonetheless, this is one of those cases where the assets remaining are so small that any kind if distribution other than 100 per cent of the matrimonial home to the mother is simply just not sustainable or just and equitable. It is, as it were, a standalone case turning on very particular facts.
By the same token, however, the mother's application to have 100 per cent of the father's superannuation is likewise at the outer margins. The idea that the father who contributed at least equally and who has future needs of his own, albeit less than those of the mother, should get nothing whatever out of the relationship is untenable. In my view, he should retain his superannuation. This gives him something at least for his many years of endeavour.
Conclusion on property
In my view, in the particular circumstances of this case, it is clearly just and equitable that the mother retain the matrimonial home if she is able. If it is sold she should receive such funds as may become available. I note that Victoria Legal Aid may take all the equity, but then again they may not. If Victoria Legal Aid does indeed take all the equity in the property, I would nonetheless still provide that the husband receive his superannuation. It is far from clear in any event that the relatively small amount he has thus far put together was not generated following final separation. His earlier payout of the arrears of the mortgage in 2012 suggests strongly that indeed the entirety, or at least a substantial proportion, of the superannuation is a post separation asset. On any view of the matter, he should retain his superannuation.
Care will need to be given to the form of orders to reflect the transfer of the father's interest in the property to the mother, and I will request Counsel for the mother to draw up orders to the effect of these conclusions.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.
Date: 6 October 2017
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