TUMLIN & TUMLIN
[2016] FamCA 944
•12 October 2016
FAMILY COURT OF AUSTRALIA
| TUMLIN & TUMLIN | [2016] FamCA 944 |
| FAMILY LAW – CHILDREN – Where the parties agree that no order should be made for equal shared parental responsibility – Where the wife seeks sole parental responsibility but the husband seeks to place conditions upon any order for parental responsibility – Where the parties agree that the child is to reside with the wife Where there is a history of family violence –– Where the wife has a genuine but unreasonable belief about the level of family violence – Where the child has had no contact with her father for four and a half years and expresses a view that she does not wish to have contact with her father – Where the child has substantially lived with the wife’s mother – Where it is anticipated that the child will experience high levels of anxiety at the suggestion of contact with her father – Where the parties agree that the wife will facilitate contact between the child and the husband if the child seeks that contact – Where making no orders about time or communication between the child and the husband creates a cleaner pathway to allow the child to reconnect with her father if she chooses to do so in the future. FAMILY LAW – PROPERTY – Where the husband contends for a main pool and an inheritance pool and submits that the wife made no contribution to the inheritance pool – Where there is no need to isolate the inheritance assets – Where the husband has a remainderman interest in property owned by his parents – Where the husband’s assets were of significantly greater value than the wife’s at the commencement of the marriage – Where the most significant financial contribution was an inheritance received by the husband – Where the husband received a redundancy package but that should not be viewed as an additional contribution made solely by him – Where the wife was the primary home maker – Where the husband did not fulfil a meaningful role as parent to the parties child –Where the principles in Kennon & Kennon do not apply as the wife’s contributions were not made significantly more arduous due to the incidents of family violence – Where there should be a 72.5/27.5 split in the husband’s favour based on contributions – Where the contributions made by wife’s mother in the role of homemaker and parent to the parties’ child are dealt with as a s79(4)(d)-(g) matter – Where the wife receives a 7.5 per cent adjustment of s 79(4)(d)-(g) matters – Where the assets are divided as to 65 per cent to the husband and 35 per cent to the wife. |
| Australian Passports Act 2005 (Cth) Aleksovski v Aleksovski (1996) FLC 92-705 |
| APPLICANT: | Ms Tumlin |
| RESPONDENT: | Mr Tumlin |
| INDEPENDENT CHILDREN’S LAWYER: | Mr O'Dowd |
| FILE NUMBER: | SYC | 948 | of | 2012 |
| DATE DELIVERED: | 12 October 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 1 - 5 August 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr MacPherson |
| SOLICITOR FOR THE APPLICANT: | WMD Law |
| COUNSEL FOR THE RESPONDENT: | Mr Connor |
| SOLICITOR FOR THE RESPONDENT: | Otto Stichter & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Messner |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting
The wife have sole parental responsibility for the child B born … 2004 (“the child”) provided that:
1.1.The child’s family name is not to be changed from “Tumlin”; and
1.2.The wife shall not change the child’s habitual residence
unless the husband consents to that change.
The wife shall not cause the child to reside outside the Sydney metropolitan area without further order or written agreement with the husband.
The child shall live with the wife.
The wife shall facilitate any contact between the child and the husband if the child seeks that contact.
The wife do all acts and things to ensure the child’s continued attendance upon Mr C for therapy, such attendance to continue for at least the next 12 months but the court notes the wife will be guided by Mr C as to the period of time that the child continues to attend.
The wife is hereby restrained by injunction from continuing her attendance upon Mr C for therapy.
The Independent Children’s Lawyer (“ICL”) be at liberty to provide Mr C with a copy of the judgment and final orders in this matter.
Each parent should notify the other as soon as possible of any serious injury or illness suffered by the child whilst with that parent.
Each party is restrained from:
9.1.Denigrating the other to, or in the presence of the chid or causing or allowing any other person to do so; and
9.2.Discussing matters relating to the proceedings with the child or within her hearing.
The wife shall cause the child’s passport and travel documents to be held by the wife’s lawyer unless she requires them for any purpose connected to overseas travel.
Pursuant to s65Y(2)(b) of the Family Law Act 1975 (Cth) (“the Act”) the wife be permitted to take the child to a place outside Australia for a holiday provided that the wife provides the husband with reasonable notice in respect of her intention to travel overseas with the child and the itineraries for the travel.
For the purposes of s 11 Australian Passports Act 2005 (Cth):
12.1.It is noted the above orders allow:
12.1.1.The child to travel internationally.
12.2.The husband is restrained from making an application for an Australian passport or travel-related document for the child;
12.3.The child is permitted to have an Australian passport or travel-related document provided the application for that document is made by the wife, who may sign any declaration on the application in the form approved by the relevant Minister.
The wife do all acts and things and sign all documents necessary to ensure that the school the child is attending from time to time is authorised to send to the husband at his address (D Street, Suburb E, NSW …) a copy of the child’s yearly and half yearly academic school reports and the court notes that should the husband’s address change he is at liberty to advise the child’s school of his change of address.
The husband shall be permitted to send gifts, cards and letters to the wife’s lawyer for forwarding to the child and that the wife do all acts and things to facilitate the child receiving these things.
The husband shall be permitted to deposit monies into a bank account which the wife establishes for the child’s benefit and the wife will inform the husband of the details of that account.
As soon as is practicable, the wife shall inform the husband in writing of her and the child’s residential address and what school the child attends and any change in those details from time to time.
Pursuant to s 68B of the Act, for the personal protection of the wife and the child, the husband is restrained from:
17.1.Going within 50 metres of the premises at which the wife and/or the child may from time to time reside including but not limited to F Street, Suburb G and any place of the wife’s employment;
17.2.Pending further order going within 50 metres of the child’s school;
17.3.Contacting the employer of the wife; and
17.4.Approaching or contacting the wife and/or the child by any means whatsoever except through legal representatives.
The court notes that the ICL, in discharging his duties as the child’s representative, will explain the final orders to the child in a face to face meeting, and in explaining the final orders will include an explanation as to how these final orders do not exclude the child from making contact with her father at some stage in the future.
Within 60 days of the date of these orders the wife and husband each pay to Legal Aid NSW the sum of $8,113.50 in payment towards the professional costs of the ICL and the court notes that the wife has already paid Legal Aid NSW the sum of $1,650 towards her debt of $8,113.50.
Property
Pursuant to s 79 of the Act a property settlement order be made in the terms of paragraphs 21 to 30 hereunder.
Within 42 days from the date of these Orders (“due date”):
21.1.The husband shall pay to the wife or as she may direct in writing settlement monies in the sum of $1,544,742 (“settlement monies”); and
21.2.The wife shall be declared to have sole right, title or interest in the property situated at and known as H Street, I Town Greece (“the I Town Property”), and the wife will thereafter indemnify and keep the husband safe against all liability the parties may have in relation to the I Town Property; and
Simultaneously upon the husband's compliance with Paragraph 21.1, as between the husband and wife, the husband will be declared to have sole right, title and interest in:
22.1.The property situated at and known as D Street, Suburb E in the State of New South Wales being the whole of the land comprised in folio identifier … (“the Suburb E Property”), and the husband will thereafter indemnify and keep the wife safe against all liability the parties may have in relation to the Suburb E Property;
22.2.The property situated at and known as J Street, Suburb K in the State of New South Wales being the whole of the land comprised in folio identifier B/932661 (“the Suburb K Property”), and the husband will thereafter indemnify and keep the wife safe against all liability the parties may have in relation to the Suburb K Property; and
22.3.The property situated at and known as L Street, Suburb M in the State of New South Wales being the whole of the land comprised in folio identifier … (“the L Street Property”), and the husband will thereafter indemnify and keep the wife safe against all liability the parties may have in relation to the L Street Property.
In the event the husband fails to comply with Paragraph 21.1 by the due date then he shall pay interest on the settlement monies at a rate fixed from time to time by the Family Law Rules 2004 (Cth) from the due date to the date of payment.
In the event that the husband fails to comply with Paragraph 21.1 within 14 days of the due date, then the husband will immediately do all acts and things and sign all documents as shall be necessary to sell such of the shares he holds with Computershare Limited, N Ltd and O Pty Ltd as is necessary in order for the husband to comply with Paragraph 21.1 and to cause the proceeds of such sale to be applied in the following manner and order:
24.1.In payment of the costs of and incidental to such sale;
24.2.In payment to the wife or as she may direct in writing such sum of the settlement monies as remains outstanding at that date, plus interest thereon; and
24.3.In payment of the balance then remaining to the husband;
provided that the husband will be solely responsible for payment of any liabilities including but not limited to capital gains tax associated with the sale of those shares and will indemnify and keep the wife safe in relation to those liabilities AND the husband will keep the wife informed of all steps taken toward the sale of shares for the purpose of this Paragraph.
In the event that any part of the settlement monies remains outstanding following the sale of shares in accordance with Paragraph 24 then the husband shall forthwith do all acts and things and sign all documents as shall be necessary to sell the Suburb E Property for the best price reasonably obtainable as agreed by the husband and wife and to cause the proceeds of such sale to be applied in the following manner and order:
25.1.In payment of the costs of and incidental to such sale;
25.2.In payment of the balance to the wife;
25.3.The amount payable under order 21.1 will reduce to an amount of $144,742; and
25.4.In payment of the balance then remaining to the husband.
Should the parties be unable to agree upon any matter relating to the sale of the Suburb E Property including (but not limited to) the price at which the property is to be offered for sale or sold, the agent or agents to have the conduct of the sale or whether the property should be offered for sale by private treaty or public auction, then the parties or either of them may appoint the President for the time being of the Real Estate Institute of New South Wales or his nominee to make such determination on their behalf and shall be jointly bound thereby and jointly bear the costs thereof.
That in the event that the Suburb E Property fails to be sold by private treaty within a period of three months from the date that it has been listed for sale in accordance with Paragraph 25 then the parties shall take all necessary steps and execute all documents necessary to cause such property to be sold by auction at the earliest possible date at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Real Estate Institute of New South Wales or his nominee and that the proceeds of the said sale be distributed as set out in Paragraph 25.
Each party will otherwise retain any other personal liabilities, loans or debts in their sole name and will indemnify the other party in relation thereto.
Save as otherwise provided in this Order the wife will be declared to have the sole right, title and interest at law and in equity of:
29.1.The motor vehicle registered in her name;
29.2.Any other chattels, goods, furnishings and other property which are, as at the date of this Order, in her possession; and
29.3.Any monies, shares, debentures and superannuation entitlements, which stand in her sole name as at the date of this Order.
Save as otherwise provided in this Order the husband will be declared to have the sole right, title and interest at law and in equity of:
30.1.Any chattels, goods, furnishings and other property which are, as at the date of this Order, in his possession; and
30.2.Any monies, shares, debentures and superannuation entitlements, which stand in his sole name as at the date of this Order.
In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the Court is appointed pursuant to s 106A of the Act, to execute such deed or instrument in the name of such party and to do all things necessary to give validity and operation to the deed or instrument.
Either party is granted liberty to apply on fourteen (14) days notice regarding the implementation of the property settlement order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tumlin & Tumlin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 948 of 2012
| Ms Tumlin |
Applicant
And
| Mr Tumlin |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings for parenting and property settlement orders.
APPLICATIONS
The parties agreed to orders to the following effect:
2.1.All previous parenting orders in relation to the child B born in 2004 (“the child”) be discharged.
2.2.The child live with the wife.
2.3.The wife do all acts and things to ensure the child’s continued attendance upon Mr C, psychologist, for therapy, such attendance to continue for at least the next 12 months but the court notes the wife be guided by Mr C as to the period of time that the child continues to attend. The agreement of the husband to this order was in the event that his application that Mr C cease to be the child’s therapist was unsuccessful.
2.4.The wife is hereby restrained by injunction from continuing her attendance upon Mr C for therapy.
2.5.The Independent Children’s Lawyer (“ICL”) be at liberty to provide Mr C with a copy of the judgment and final orders in this matter.
2.6.Each parent should notify the other as soon as possible of any serious injury or illness suffered by the child whilst with that parent.
2.7.Each party is restrained from:
2.7.1.Denigrating the other to, or in the presence of the child or causing or allowing any other person to do so; and
2.7.2.Discussing matters relating to the proceedings with the child or within her hearing.
2.8.The wife agreed not to move outside the Sydney metropolitan area without further order or written agreement with the husband.
2.9.The wife facilitate any contact between the child and the husband if the child seeks that contact.
2.10.Within 60 days of the date of these orders the wife and husband each pay to Legal Aid NSW the sum of $8,113.50 in payment towards the professional costs of the ICL and the court notes that the wife has already paid Legal Aid NSW the sum of $1,650 towards her debt of $8,113.50.
The wife and the ICL sought an order that the wife have sole parental responsibility for the child. The husband agreed that that order be made but sought to place conditions upon any order in relation to parental responsibility as detailed below.
The ICL and the wife proposed that the wife do all acts and things and sign all documents necessary to ensure that the school the child is attending from time to time is authorised to send to the husband at his address (D Street, Suburb E, NSW …) a copy of the child’s yearly and half yearly academic school report and the court notes that should the husband’s address change he is at liberty to advise the child’s school of his change of address. The husband agreed to that order being made but sought that the order be extended to include school photographs. That extension was opposed by both the wife and the ICL.
The wife sought the following orders:
5.1.The husband shall spend no time with the child.
5.2.The husband shall have no communication with the child.
The ICL and the husband opposed orders being made in those terms and sought that no order be made about the child spending time with the husband or communicating with the husband.
The wife sought orders for injunctions pursuant to s68B of the Family Law Act 1975 (Cth) (“the Act”) for her personal protection and the personal protection of the child (see paragraph 5 page 24 of the wife’s case outline). The husband and the ICL opposed orders for injunctions being made against the husband. The wife did not press her application that the s68B orders she sought extend to all persons living with the child.
In his Further Further Amended Response filed 13 April 2016 the husband did not press orders sought in paragraphs 3, 4-16, 18, 21 and 23.
The husband pressed an order that each party notify the other in writing with at least 30 days notice of any intended or proposed change of address and the new address, if/when known. Both the wife and the ICL opposed an order being made in those terms (the ICL argues that the husband will know what school the child is attending at all times and does not need to know her residential address).
At paragraph 22 the husband sought an order that he may attend events, performances, presentations, sports activities, parent teacher meetings and like events at the child’s school and to receive newsletters, notifications and report cards from the child’s school or alternatively that such documents and materials shall be provided to the husband by the wife. The ICL supported an order being made in those terms. The wife agreed in relation to the husband receiving newsletters, notifications and report cards from the child’s school. She opposed providing documents and materials to the husband herself. On the basis that she sought an injunction restraining the husband going to the child’s school she otherwise opposed that order.
The husband wanted the following matters excluded from the wife having sole parental responsibility:
11.1.Both parents will confer and agree upon the high school to be attended by the child;
11.2.B’s family name is not to be changed from “Tumlin” unless with the consent of the husband; and
11.3.B’s passport will be held by a third party agreed upon by the wife and the husband and will not be released except with the written consent of both parties.
The husband did not press the order sought in subparagraph 1. The wife agreed to the order being made in subparagraph 2. There was an agreement that the child’s passport and travel documents would be held by the wife’s lawyer.
The husband sought an order that each party be restrained from removing or causing or allowing the child to be removed from the Commonwealth of Australia and that the child be placed upon the airport Watch List. Those orders were opposed by the wife and the ICL. The wife agreed, in relation to any overseas travel with the child, to give the husband reasonable notice in respect of her intention to travel overseas with the child and the itineraries for the trip.
The wife sought an order under s65Y(2)(b) of the Act to the effect that she be permitted to take the child to a place outside Australia for a holiday. She agreed not to change the child’s habitual residence.
Orders were also sought by the wife under s11 of the Australian Passports Act 2005 (Cth).
The husband sought and the ICL agreed to a notation in the following terms:
16.1.The court notes that the ICL, in discharging his duties as the child’s representative, will explain the final orders to the child in a face to face meeting, and in explaining the final orders will include an explanation as to how these final orders do not exclude the child from making contact with her father at some stage in the future.
The husband also sought during final submissions that an order be made for the child to attend a new psychiatrist (I inferred he meant a new psychologist). That oral application was opposed by the wife and the ICL.
The husband sought an order that he be allowed to send gifts, cards, letters and deposits to bank accounts and that the wife do all acts and things to facilitate the child receiving these things. Both the wife and the ICL agreed to that order on the basis that these things were sent through the wife’s solicitor.
The wife seeks an adjustment of property such that she receives 45 per cent of the total net asset pool by way of a cash payment to her by the husband and on the basis that each party keep the assets, liabilities and financial resources which are in their name or control.
The husband seeks a similar distribution of property order on the basis that he pays the wife $600,000.
SHORT HISTORY
The maternal grandmother was born in 1942 and is currently 74 years of age.
The husband was born in 1967 and is currently 48 years of age.
The wife was born in 1970 and is currently 46 years of age.
The parties were married in 2001.
In 2004 the child, B, was born and is currently 12 years old.
On 6 January 2012 the child left the residence of the husband and wife and has not seen the husband since that time.
On 10 January 2012 the husband and wife separated on a final basis.
On 30 March 2012 a final ADVO order was made for the protection of the wife and the child for a period of two years.
CREDIT
The wife gave her oral evidence in a far more convincing manner than did the husband. She responded to questions in a direct way and I have no doubt that the beliefs that she expressed about the husband were genuine.
The husband was requested on multiple occasions to focus on the question that he was being asked and to just answer it. He demonstrated a limited ability to do this.
One of the central issues in the case related to a history of family violence which I discuss in more detail below. Neither party was the subject of any detailed testing in respect of all of their respective claims in relation to family violence. Given the way the parenting issues were partly resolved, the issue of family violence became less important in that context. The wife however maintained a claim in her application for a property settlement order partly based upon the principles expressed in Kennon & Kennon (1997) FLC 92-757.
Notwithstanding how each of the parties impressed me in the way they gave their oral evidence, I’m not able to make any general finding that one parties’ evidence should be preferred to that of the other.
DETAILED CHRONOLOGY
The maternal grandmother was born in 1942 and is currently 74 years of age.
The husband was born in 1967 and is currently 48 years of age. The husband previously worked full time as a tradesman. He is now employed in the public service.
The wife was born in 1970 and is currently 45 years of age. She was born in Australia but her parents immigrated to Australia from Greece. The wife works full time as a public servant.
On 21 April 1989 the maternal grandmother transferred a property at P Street, Suburb Q to the wife. This property was sold on 27 October 1995 for $85,000 and the maternal grandparents received the entire net sale proceeds.
In 1992 the husband purchased a property at L Street, Suburb M (“L Street”) for the sum of $200,000. The husband borrowed $140,000 from St George Credit Union. That mortgage was discharged in about 1993. The paternal grandparents commenced to live at L Street (which the husband later transferred into their names in about 1997). In 1994 the husband and paternal grandfather with other tradesman demolished the dwelling, subdivided the land and built two duplexes (1 and 2 L Street).
On 9 December 1996 the maternal grandparents sold their former home to purchase a property at F Street, Suburb G (“the Suburb G property”). The wife and her brother, Mr R, were also registered owners of the Suburb G property so the four family members (the wife’s parents, the wife and her brother) were registered as tenants in common in equal shares.
The parties were married in 2001. The parties commenced living together in 2 L Street, Suburb M (“2 L Street”) when they were married. After their marriage, the husband’s income commenced to be paid into the wife’s St George Passbook Account (0874) and he was later made a signatory to that account. Throughout the marriage the wife would withdraw cash from the parties’ bank accounts pursuant to the husband’s direction in order for them to pay for living expenses and bills (the amounts of these withdrawals became larger in 2006 when Bendigo Bank introduced fees for making more than two withdrawals inside a branch per month so the husband directed the wife to only go to the bank twice each month).
On 30 July 2002 a term deposit the wife held with St George Bank matured. The wife received an amount of $100,731.82.
In September 2002 the parties purchased an investment property at S Street, Suburb T (“the Suburb T property”) The Suburb T property was purchased in the wife’s sole name for about $549,342. To fund the purchase, the parties borrowed about $415,000 from Members Equity Bank and paid the remainder using funds from the wife’s term deposit and the parties’ savings.
From 2002 to 2007 the Suburb T property was rented out for $320 per week which increased by $20 each year.
In January 2003 the wife fell pregnant.
In late February 2003 the wife had a miscarriage.
In September 2003 the parties spent eight weeks in Greece on a holiday. The parties borrowed $6,000 from the maternal grandmother to fund the holiday of which they paid $2,000 back. They planned to spend a further three weeks in Greece and another week in Europe however, the wife’s father’s health deteriorated and the parties returned to Australia on 31 October 2003.
In late 2003 the wife’s father died.
In December 2003 the wife became pregnant with the child. She worked full time during the pregnancy.
In 2004 the parties borrowed $5,000 from the maternal grandmother to purchase the wife a new car. The parties paid $2,500 back to the maternal grandmother.
On 23 March 2004 the wife and her brother transferred their 25 per cent shares in the Suburb G property back to the maternal grandmother.
On 16 June 2004 the husband converted to Greek Orthodox religion (the religion of the wife).
On 19 July 2004 the parties opened a joint passbook account with Bendigo Bank (564) in place of their St George account which they closed on 29 July 2004. Both of the parties’ wages were paid into the Bendigo Bank account.
On about 18 August 2004 the wife became a joint account holder to the husband’s Credit Union Account.
In 2004 the parties’ child, B, was born. The husband says that the maternal grandmother did not allow him to go into the delivery room. The wife says that this was the husband’s decision. The wife took eight weeks maternity leave before returning to work from which time the child commenced staying at the Suburb G property with the maternal grandmother usually three to four nights per week but sometimes one to two nights per week. The wife would attend the Suburb G property before and after work to visit and assist with the child. The wife says that when she took the child back to 2 L Street the husband did not spend time with the child. If the husband was disturbed by the child during the night he would demand that the wife take the child to the maternal grandmother at the Suburb G property. She says that he told the wife that he was not getting enough sleep due to the child’s crying which he was concerned would cause him to have an accident at work.
In 2005 the maternal grandmother gifted the wife a property at H Street, I Town Greece (“the I Town property”) (subject to the maternal grandmother’s life interest in the property). The parties arranged for the I Town property to be rebuilt and engaged contractors in Greece. The parties opened an account in January 2005 with V bank (now known as W Bank) to fund the renovations. The parties also sent money to the wife’s aunt, Ms U, to the National Bank of Greece who assisted the parties pay for the work undertaken to the I Town property. The parties spent about $140,300 on the renovations.
From about September 2005 the child commenced spending five nights per week at the Suburb G property with the maternal grandmother. She spent Friday and Saturday nights with the parties at 2 L Street.
In mid-October 2005 after obtaining employment with Company X the husband took a voluntary redundancy and received a payout of $100,000.
On 7 October 2005 the husband closed his Credit Union Account.
On 14 December 2005 a Deed of Agreement was signed by the husband and his parents providing that the husband will receive payment for the land value of L Street upon the death of the paternal grandparents.
In April 2006 the husband commenced working full time with the public service.
In May 2006 the wife attended upon a solicitor to draw up a will, the wife says due to her fear that the husband would follow through with his threats to have her killed. As set out below, the only specific evidence that the wife gives in relation to a possible “death threat” prior to this time is a statement the wife alleges that husband made on 11 December 2005 that he would “fix [her] up”. The wife was not tested on her understanding of that expression. The will was drawn on 11 July 2016 in which the wife left her entire estate to the child and provided for the maternal grandmother to be the child’s guardian until she was 18 years of age.
In October 2006 2 L Street was sold for about $625,000 and the husband received net proceeds of about $612,000.
In November 2006 the parties moved into the property at D Street, Suburb E NSW (“the Suburb E property”). The funds from the sale of 2 L Street were used to purchase the Suburb E property for about $721,000 plus stamp duty. The husband borrowed $80,000 from Members Equity which was added to the mortgage secured over the Suburb T property. The property was purchased in the husband’s sole name. From 2007 to 2012 substantial renovations were done on the Suburb E property paid from the parties’ joint account and loans from the maternal grandmother. Since the parties moved to the Suburb E property, and the husband and wife were no longer living in the premises adjacent to the paternal grandparents, the child has had no contact with the paternal grandparents. When the child stayed with her parents at the Suburb E property the wife says that the husband would become angry and abusive at them both.
After the parties moved into the Suburb E property, the wife says that she noticed that her clothes and shoes had been damaged. Later, around the time of separation, the wife found a large bronze coloured razor hidden beneath the bottom draw of the wardrobe.
In about June and July 2007 the parties travelled overseas with the child. The parties borrowed money from the maternal grandmother for the holiday totalling $10,000 of which the wife deposited $9,500 into the Bendigo Bank account and used $500 for immediate expenses. The parties paid $3,000 of this amount back to the maternal grandmother. During the time the parties spent in Greece, the husband laboured and otherwise assisted on the I Town property.
In 2010 and 2011 the child attended Y School in Suburb G. Throughout this time the wife says that the husband complained about paying the school fees even though the maternal grandmother was contributing to the payment of the fees.
The wife alleges that the husband was obsessed with money and would often ask her about her inheritance. Towards the end of 2010 the wife told the husband that she would receive an inheritance from her great grandfather through her grandparents but would not be entitled to it until she was 55 years old. The wife says this statement is untrue and she only told the husband this to stop his harassment.
From mid-2010 (about 18 months prior to the parties’ separation) the child started to spend about one night per week with the parties in the Suburb E property.
In September/October 2010 when tenants moved out of the Suburb T property, the parties spent about $6,579 on improvements to the property. Following these improvements, the Suburb T property was rented for $550 per week.
In January 2011 Ms Z, a friend of the husband’s family, died. The husband’s relationship with Ms Z commenced when he was a child. The husband and his brother, Mr AA, were the main beneficiaries of her estate. She owned property at J Street, Suburb K which she passed to the husband and his brother, Mr AA. The husband received a total of about $3 million from the estate including a share portfolio.
In October 2011 the wife removed the husband’s name from their family Medicare card.
In December 2011 the wife paid the maternal grandmother back an amount of $5,000.
In early January 2012 the wife opened a present that the paternal grandmother had given the child for her seventh birthday. She says that it was a book titled “Where’s Willy? Have you spotted Dick?” The child began reading the book out loud. The book was filled with colourful pictures of semi naked men and women with words such as “Men show me your willies. Men show me your prowess. Expose yourself”. The wife conducted an internet search in relation to the book which revealed that it is a book designed for adults.
The parties separated on 10 January 2012. On this date the wife moved out of the Suburb E property after the husband went to work in the morning. Since the parties’ separated, the wife and child have lived with the maternal grandmother. Later that evening, at around 6pm, the husband rang the wife and said he wanted her to return home. The wife kept hanging up on him and the husband later arrived at the maternal grandmother’s home and rang the doorbell for long periods of time. The wife spoke to him from the intercom telling him to leave or she would call the police but the husband continued to ring the doorbell over and over again. The police later arrived.
On 10 January 2012 the wife drew down by way of transfer the sum of $151,400 against the Members Equity Standard Home Loan mortgage secured against the Suburb T property. On 20 April 2012 the wife withdrew an additional $5,200 from the re-draw facility on the Suburb T mortgage.
In February 2012 the child commenced year two at BB School at Suburb CC.
On 7 February 2012 the wife and the child commenced to attend upon psychologist, Mr C.
On 18 June 2012 interim orders were made by consent for the wife to have sole parental responsibility for the child and the child to live with the wife and have no contact with the husband.
On 22 October 2012 the Suburb T property was sold for $715,000. After the repayment of the mortgage and costs of the sale the wife received proceeds of about $364,632.99.
On 27 May 2013 the husband filed an Application in a Case seeking time with the child and for parentage testing. On 6 December 2013 parentage testing confirmed that the child is the husband’s biological daughter.
The parties were divorced on 22 February 2014.
In 2014 the wife’s brother died.
On 12 May 2015 the wife received a telephone call from the Principal of the child’s school, BB School, advising that the husband had contacted the school requesting the child’s class reports and photographs. On 13 May 2015 the wife’s solicitors wrote to the Principal advising that she did not oppose the husband receiving school reports by post or email and that the child would be traumatised if she saw her father in person. She did not consent to the husband receiving photographs. In mid-2015 the child discovered that her father was receiving her school reports.
On 21 September 2015 the husband filed an Application in a Case seeking time with the child. The application was dismissed on 20 November 2015.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII of the Act are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
APPLICABLE LAW
Counsel for the wife relies on Blinko & Blinko [2015] FamCAFC 146 and in particular [83] which states:
It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
1. If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
2. If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
3. Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623.
I accept that the authorities referred to provide relevant guidance in the facts of this case.
FAMILY VIOLENCE
The wife makes allegations of family violence against the husband. The husband denies there were instances of physical violence or other abuse as alleged by the wife and counters that it is the wife who on occasions physically assaulted or was otherwise abusive towards him. The wife was not meaningfully cross examined about any occasions of physical abuse towards the husband except to have put to her in a general way that she was the bully in the relationship and it was she that was aggressive towards the husband. Nor was the husband tested in any detail about all the incidents that were alleged by the wife in her written evidence. Consequently, I do not intend to make any specific findings about any specific allegations except for the following allegations:
88.1.That the husband assaulted the wife while they were both in bed on the 11 December 2005;
88.2.That the husband hit the child in the nose in about 2009; and
88.3.That the husband attempted to murder the child on 6 January 2012.
Otherwise, what is set out below are the parties allegations one against the other.
In January 2003 the wife fell pregnant. During the pregnancy, the wife says that the husband would abuse and berate her for falling pregnant, sometimes yelling at her for hours or pushing her. She also says that he would charge at her and stop just short of ramming into her and scream abuse into her face. The wife says that during the pregnancy the husband would hit and kick the wife in her face, neck, stomach, arms, chest or legs, in her sleep. The husband denies these allegations.
In about April/May 2003 the wife’s father became ill. The wife says prior to leaving for a holiday later in 2003, the parties had been arguing about going away because she wanted to stay in Australia and care for her father. During these arguments, the wife says that the husband would become quite aggressive. On one occasion she says he came close up to her face and yelled at her causing the wife to run out of the house. The wife claims the husband ran after her on the street and dragged her by the arm back to their home where he continued to abuse her.
In late 2003 the wife’s father died. The husband alleges that the wife accused doctors of poisoning her father. The husband says that when he was trying to control the wife after she made this allegation in the hospital, she struck him across both sides of his face. The wife denies this allegation.
On 8 December 2003 the wife was involved in a car accident and was taken to DD Hospital. The wife says that when she was discharged the husband insisted on going straight to the panel beaters to fix the car even though the doctors had advised the wife to go home and rest. The husband made the wife walk to the panel beaters and fill out the insurance forms and then walk back home. When they got home, he made her write a report straight away detailing what had happened to give to the police and insurance company. The husband denies making the wife walk anywhere on that day.
Once she became pregnant with the child, the wife says that the husband began kicking her at night while she slept again. The husband denies that he assaulted the wife in her sleep.
About a week before the paternal grandfather’s birthday in 2005, the husband says that the wife screamed at him and slapped him in his face with an open hand after telling him that he could not attend the paternal grandfather’s birthday party.
The wife says on the evening of 11 December 2005 she woke up when the husband’s arm landed heavily across her neck which she was then unable to move. She told the husband to remove his arm but the husband then started to punch the wife increasingly harder and faster in the neck and chest, arms and legs. The wife eventually screamed and the husband stopped hitting her. The wife attempted to pick up the phone but the husband grabbed it from her and told her that she was not allowed to call anyone or tell anyone what happened otherwise he would “fix [her] up”.
The following day, the wife says she went to work but her neck started to throb and she became short of breath. She consequently attended upon her GP, Dr EE. The wife says she advised Dr EE of the incident that had occurred the previous evening but did not tell him that the husband had been awake when he attacked her. She says she told him that it was dark and she could not see if the husband was awake. The wife does not tell Dr EE that she thought that the husband had threatened on the previous day to arrange for her to be killed. In a letter dated 25 January 2012 Dr EE states the following:
When [the wife] consulted me on 12 December 2005, she told me that her husband had been under a great deal of stress … and he hit her in her sleep … On examination, she was extremely upset about what happened. There was some tenderness around her neck as well as bruises on both her forearms.
In the same letter dated 25 January 2012, Dr EE states:
[The husband] consulted me on 30 June 2006 when he told me that his sleep has been very restless. His wife noticed swinging of his arms and legs and punching with his fist on the abdomen area. He also talked in his sleep at times. He felt that symptoms may have started after he began experiencing stress due to having problems with his family.
Dr EE prescribed the husband with Valerian and recommended that he attend upon a Neurologist (which the husband did not do).
The wife says that she was present during the consultation on 30 June 2006 and that the husband admitted to hitting her in his sleep. The husband denies that he did so. In a subsequent letter dated 21 March 2012, to clarify some issues, Dr EE stated:
…on 30 June 2006, [the husband] attended with his wife … The statement that he punched [the wife] with his fist on the abdominal area was made by her at the time of the consultation. As indicated in my report, the history given by [the wife] was that this episode occurred while [the husband] was asleep but he had no recollection of it. The statement from my report was that ‘His wife noticed swinging of his arms and legs and punching with his fist on the abdomen area.’ This is what [the wife] had said to me at the consultation of 30 June 2006, in the presence of [the husband].
Dr EE’s consultation notes were not in evidence and this letter was dated many years after the consultation. In oral evidence the husband said that he always slept with his hands under the pillow. If he was asleep I am unsure as to how he knew that. I did not accept that evidence. What was reported to Dr EE by both parties on 30 June 2006 relates to more than one occasion when the parties were in bed together. There is no allegation by the wife to the doctor in her consultation on 12 December 2005 that the husband had hit her in the abdominal area. On 12 December 2005 the wife told the doctor that she was asleep when the husband had hit her on the previous day. In the consultation on 30 June 2006 the husband alleges that he was asleep and had no recollection of swinging his arms and legs and punching with his fists on the wife’s abdomen.
The doctor’s examination on 12 December 2005 would indicate the wife had suffered at least some tenderness around her neck and bruising to both her forearms. I conclude that those injuries were as a result of the husband coming in contact with her whilst they were both in bed. Those injuries are indicative of a possible assault by the husband on the wife whilst they were in bed together but I am not able to conclude to the requisite standard that the wife sustained those injuries as a result of a deliberate assault by the husband.
On 31 December 2005 the husband says that after returning from a party, the wife assaulted him by hitting him across the neck and scratching her nails on his bare chest.
The wife says when the child was about two years old, on one occasion she was speaking to the maternal grandmother on the telephone in Greek, the husband heard her and yelled at her. From the time the child was about two or three years of age, the wife would ensure that the child was never too far away from her so as to prevent the husband from abusing the child.
The wife says that since the middle of 2007 she has had no contact with the child’s godparents after the husband forbade her from having any contact with them.
In about June 2007 the wife says the child became sick a few days before they were due to leave for an overseas holiday and when they were in Europe the child became sicker. The wife wanted to take the child to a doctor but the husband forbade her saying that it could be too expensive.
A few days before the husband’s birthday in 2007, the husband says following an argument the wife poked him in the left eye with her finger.
When the child was about four years old the wife says the husband cut down a shrub in the garden of their home after the child had expressed that she liked the birds that sat in that bush.
In about 2009 the wife says that she was warming some milk on the stove for the child when she heard the child scream. The wife turned around and saw that the child was crying. The child told her mother that the husband had hit her on the nose. The wife observed that the child’s nose and forehead were red. She confronted the husband about it and the husband initially denied touching the child but then offered the explanation that he had maybe knocked her without realising. The wife attempted to call the hospital but the husband grabbed the phone from her and unplugged it from the wall. The wife says that the child experienced pain during the night and could not breathe properly. The husband refused to allow the wife to take the child to a hospital, threatening that he would “fix you both up” if he was charged with assault. The husband denies that such an incident occurred.
On 8 November 2012 Mr C notes that the child told him that the husband “punched [her] in the nose”. In the Children and Parents Issues Assessment by the Senior Family Consultant on 23 May 2013, it is noted that the wife indicated that the incident of the child being hit on the nose may have “accidentally occurred”. The parties were actively involved in litigation at the time and it’s unlikely that the wife would have said this to the Family Consultant if she thought the husband’s contact with the child’s nose had been deliberate.
The wife says when the child was about five years old the husband shouted at her after finding a mark on a wall in her bedroom. Eventually, the wife says she and the child left and went to the Suburb G property where they stayed for a few hours before the wife returned to the Suburb E property.
In late 2010 the child performed in a school concert. When the wife told the husband about the concert she says he expressed dissatisfaction about attending as he normally went for a drink with his parents on Friday nights. The child overheard the conversation and told him to spend the night with his parents and that he was a “bad father”. The husband yelled at the child telling her he would smash her face in.
In early December 2011 the wife says the husband became angry with the child and the wife heard him yelling at the child. The wife tried to calm the husband down by taking him outside. The husband says that the child had run past him without saying anything so he went into her bedroom and sat on her bed. The child yelled at him “Get out of my room” to which the husband replied, “Why are you talking like that to your father?” He called out to the wife, “Did you hear how [the child] spoke to me?” The wife replied that she had not heard anything. The child then started to scream hysterically and the wife grabbed the child and took her to the maternal grandmother’s home.
In mid-December 2011 the wife says there was an incident where the husband was yelling and swearing at the child for over an hour. The husband thought the child had not said hello to him when she arrived home and he was angry that she had not kissed him on the lips. The husband then started to charge towards the child stopping just short of crashing into her causing her to scream and back away. The husband continued to charge at the child until eventually she was on the floor cowering with her hands over her head. The wife tried to intervene but the husband pushed her away. When the wife eventually got the child away from the husband, the child was hyperventilating, was pale and had red splotches on her neck and chest. The husband denies ever making the child kiss him on the lips.
During December 2011 the wife says she saw the husband set up traps in the backyard of the Suburb E property to catch birds. He would then kill the birds. The child saw him do this and refused to stay at the Suburb E property for a few weeks afterwards.
The wife says a few months prior to the parties’ separation the husband yelled and swore at the child after he told her to take pictures down that were blue tacked to her bedroom door. The husband yelled at the child and would rush towards her, stopping just short of ramming into her.
The wife says on 6 January 2012 the child was in her bedroom reading at the Suburb E property. The wife was outside the child’s bedroom in the hallway. The wife heard the husband yelling at the child. The wife ran into the child’s bedroom and saw the husband run towards the child with his arm raised like he was going to hit her. He then grabbed the book that the child was reading, ripped it in half and threw it across the room. The husband then turned to walk away but started swearing at the child again. The husband suddenly stopped and picked up the bed cover from the end of the child’s bed and charged towards the child holding the bedcover up and then moving to put it over the child’s head. The wife rushed in and grabbed the quilt from the husband. The wife believes that the husband was attempting to smother the child with the quilt. The wife dropped the child at the Suburb G property with the maternal grandmother and returned to the Suburb E property. Since this date, the child has had no contact with the husband. She does not know why the husband became angry on this occasion and says it was not, as it had been in the past, a result of the child not acknowledging and greeting her father.
In the Children and Parents Issues Assessment by the Senior Family Consultant on 23 May 2013, the following is noted in relation to this allegation by the wife:
[The wife] alleges that on 6 January 2012 [the husband] attempted to murder the child – “he tried to smother her [B] with a blanket”. [The wife] said that she [the wife] grabbed the blanket in time and stopped him and she expressed the view that the child would have been murdered had she not go to the child “seconds later”. [The wife] says that the child had been horrified” by this incident and had said to her “take me away from him”.
In oral evidence the wife was unsure whether she had used the word “murder” in describing the incident. She says that she did use the word “smother” and either used the word “blanket” or “bed cover”.
In his report dated 16 May 2014 the single expert, Dr FF writes that in his examination of the child, he asked her to explain why she thought her father was “bad” and notes:
She said that he never liked her to read books and if she did, he would call her weird and take the book from her. She told me that at around the time her parents separated … there had been an incident when he had taken a book from her that she was reading and he had ripped it … she was in her bedroom at the time. She said that he then got a blanket and put it over her head. She could not breathe properly. Her mother came in and took the blanket off.
On 8 November 2012 Mr C notes that the child told him that she was unable to sleep alone. He states, “She spontaneously made reference to her father, “He tried to suffocate me””.
Even allowing for the enmeshment between the wife and the child I find on balance that the husband did put a blanket over the child’s head on 6 January 2012 and that in their heightened state of anxiety both the wife and the child were frightened by this happening but I am unable to conclude that the husband was attempting to smother the child.
On 9 January 2012 the wife attended upon the Domestic Violence Liaison Officer at Suburb GG Police Station with her solicitor. The wife was advised that they would take out an AVO for the protection of the wife and the child. The wife says she did not want to leave the husband until she knew that she would be protected. The husband says that the wife slept at the matrimonial home on the night on 9 January 2012 after making the complaint to the police and the parties had sexual intercourse. The wife denies this but says that they did sleep in the same room that night.
On 18 January 2012 an interim ADVO was granted by the Suburb HH Local Court protecting the wife and the child against the husband and preventing the husband from contacting or approaching either of them.
On 30 March 2012 an ADVO was made against the husband at Suburb HH Local Court preventing him from approaching or contacting the wife or child except through a solicitor for two years expiring on 30 March 2014. At the expiration of these two years the wife made an application to extend the ADVO but that application was unsuccessful.
On the central issue of who was being more accurate about the history of family violence, I form the view that the husband’s evidence that there was no family violence during the marriage was not credible. The husband said that he could offer no innocent explanation for any of the reports made by the child of incidences of family violence between himself and the child. His only explanation was that nothing of the sort ever happened. Dr FF does note the possibility that the child’s views have been shaped by her mother but I find there is some substance to them. I have previously found that the husband did place a blanket over the child’s head on 6 January 2012. He intended to frighten the child when he did that. That is an act of family violence.
Dr FF notes, apart from the child’s general assertion that her father shouted and swore at her mother and herself, that her father “would hit her on the shoulder and back.” In a consultation on 28 August 2012 Mr C notes that “[B] spontaneously made reference to father’s day. She said she had enjoyed a happy father’s day because she did not have to give “him” a present. She spontaneously commented that she had given her father a coffee mug on a previous father’s day; he told her he didn’t like it. He broke it”. Mr C also states that in a consultation on 8 November 2011 the child said that the husband would say to her, “when your mother goes to the bathroom I’ll punch you and hit you”.
On the other hand I’m confident that the wife’s level of anxiety has led the wife to the genuine but unreasonable belief about the level of the family violence that existed in the relationship and in the husband’s relationship with his daughter. The evidence does not substantiate a reasonable basis for the extent of the wife’s fear of family violence at the hands of the husband. I accept however that the wife’s fear is genuine.
STATUTORY CONSIDERATIONS
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
The wife does not believe the child would benefit from having a meaningful relationship with her father because of what she says was his behaviour during the marriage and his lack of involvement with the child. The husband has not seen the child for four and a half years.
Dr FF opines that there is serious enmeshment between the wife and the child which to some degree also involves the maternal grandmother. the child expressed a strong view that she does not want to see the father. Dr FF opines that to force the child to see her father would be counterproductive. Given the facts of this case it is unrealistic to believe that alternate therapeutic intervention might make a difference. By the end of the five day hearing, the husband accepted that at this time the child would not benefit from any attempt to force a relationship between the child and himself and abandoned his application for orders for escalating face to face time and communication with the child.
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
The wife asserts in the strongest terms the need to protect the child from both physical and psychological harm and from being subjected to, or exposed to, abuse and family violence by the husband.
The wife asserts that the child was subjected to and exposed to abuse and family violence by the husband during the parties’ marriage.
The wife says that since the parties’ separation the child has woken in the night from nightmares of the husband attempting to cause her harm. The wife also asserts that after seeing her father’s name on the computer system of Suburb II Swimming Centre in about December 2013, the child refused to attend swimming lessons at that centre. The child also became upset when she learned that her school reports were being sent to the husband.
In his report dated 19 February 2016 Mr C states:
Both [the wife] and the child suffer anxiety associated with the functioning of [the husband] … the child also suffers anxiety reactive to development with [the husband]. The child enjoys freedom from anxiety when not burdened by specific fears related to [the husband].
The additional considerations
Children’s views (s 60CC(3)(a))
The child has expressed a clear wish not to spend time with the husband. The ICL made clear this was the current unequivocal view of the child.
The child will be aged almost 12 years at the time of the final hearing and is a mature and intelligent child. However, as already mentioned, Dr FF notes that it “is possible that her views may be largely shaped by those of her mother, including exaggeration of relatively innocent events”.
Relationships of the children with the parents and other persons (s 60CC(3)(b)) participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))
The child’s relationship with the wife is a loving relationship. The relationship between the child and her mother is one of her primary attachments. Having said that, there is an enmeshed relationship between the child and her mother. The wife is highly anxious about the child seeing the husband as a result of her genuine beliefs about the risk the husband poses to the child. The child has similar views.
The child has a similar relationship with her maternal grandmother who has been an important presence and support to her in her life, both during the parties’ relationship and post separation.
There is an ongoing difficulty in relation to the child’s sleeping patterns. She insists on sleeping in her mother’s bed notwithstanding all attempts by the wife to discourage her from doing so. In the event that her mother insists that she does not do so she will go and sleep with her grandmother in her grandmother’s bed. Both the wife and the maternal grandmother acknowledge the problem. Dr FF was critical of part of the approach to therapy taken by Mr C in relation to this issue and said that the fact that Mr C was the therapist for both the wife and the child was not assisting the resolution of this problem or the child’s anxiety more generally. Dr FF was firmly of the view that this was a problem of failure of adult management rather than a problem that should be addressed by attempting for example to frighten the child by indicating that unless she slept in her own bed she’d be taken to see the school counsellor.
B is fearful of the husband and at best has only a strained relationship with him. The child does not have any relationship with the husband’s extended family as they have stayed away from the wife and the child. The child has little or no relationship with her father. She knows the husband is her father. To the wife’s credit, the child does not know that the husband required parentage testing at the commencement of this litigation.
Mr C reports “[B] perceives the father to be a source of threat both to herself and to her mother and potentially her grandmother. Her mind is closed to any suggestion that the father is anything but as she perceives him to be”.
Dr FF states, “I asked her whether there were nice things about her father, and I pressed her on this several times. She was insistent that he was always bad. I asked about specific things that they might have done together such as going to the beach or movies or other places where children might be entertained and she denied that this had ever happened”.
During the marriage the child lived largely with the maternal grandmother. The wife says that was at the husband’s insistence and also a measure taken by her to protect the child. The husband says that he was a “mouse” and was totally dominated by the wife who made the decision to move the child away to her mother’s home. He asserted that the wife placed her career ahead of having the child as an ordinary member of their household. Given the position the parties have taken in final submissions to the parenting orders to be made, I do not need to resolve this controversy.
The child has not spent time with, or communicated with the husband since January 2012. The husband has made no attempt to communicate with the child, by for example, sending greeting cards or gifts on her birthday, or at Christmas or Easter.
Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))
The child is supported by her mother and maternal grandmother. The husband pays child support as assessed by the Child Support Agency.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
The husband has correctly conceded that given the child’s current views, the impact on the child of spending time with him would be adverse to the child’s best interests.
The expert anticipates that the child would experience high levels of anxiety if it is suggested she should have contact with the husband.
Mr C says the wife and the child will experience high anxiety at the suggestion of contact between the child and the husband and that forcing contact between the child and the husband could traumatise her and it is unlikely anything positive would come from such contact.
I accept that it is the wife’s genuine position that given the expert’s report, her observations and the evidence of the psychologist Mr C, she is reticent to facilitate the child spending time with the husband.
I accept that if the child were to spend time with the husband against the child’s wishes it would have negative impact on the child and on her mother, and affect her own wellbeing and ability to parent the child. I also accept the wife’s indication that if the child in the future wishes to seek her father out, the wife would not (and says she could not) stand in the way of the child doing so. The wife has consented to an order that she would facilitate this happening if the child wanted it to happen at some point in the future.
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
A significant practical difficulty in the child spending time with her husband is the wife’s fear of the husband and of being in close proximity to him. The maternal grandmother apparently shares this fear as does the child.
The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))
The wife has the appropriate capacity to provide for the child’s needs and that this is evidenced by the husband’s consenting to the Orders of 18 June 2012, and by the Orders he seeks at the final hearing. The husband concedes the wife having sole parental responsibility for the child (subject to certain provisos he seeks) and that the child should live with her.
The husband has had no significant involvement in the care of the child throughout her life.
The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))
The child is female, aged almost 12 years and of Greek/Australian background. She speaks fluent English and Greek. The child is developing well academically and socially. Her most recent school reports are excellent. She starts high school next year.
If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))
Not relevant.
Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and(k))
I’ve discussed matters relating to family violence above. There was an ADVO in place between 30 March 2012 and 30 March 2014 for the protection of both the wife and the child from the husband. The ADVO was made by consent (and without admissions). The wife’s attempts to have the ADVO extended were not successful.
Likelihood of order leading to further proceedings (s 60CC(3)(l))
If any orders were made for face to face time, it is likely that the anxiety of the child and of the wife would quickly lead to a result where compliance with the orders would break down. Conversely, I accept the husband and the ICL’s submission that making no orders about time or communication between the child and the husband creates a cleaner pathway to allow the child to reconnect with her father if she chooses to do so in the future than would be the case if orders were made for no time and communication.
Any other relevant fact or circumstance (s 60CC(3)(m))
Nothing further.
EQUAL SHARED PARENTAL RESPONSIBILITY
The parents agree that no order should be made for equal shared parental responsibility.
CONCLUSION ABOUT BEST INTERESTS AND THE PROPOSED ORDERS
The husband concedes that an order be made in the wife’s favour for sole parental responsibility. The husband abandoned his application to be involved in the choice of the child’s high school. The wife agreed not to change the child’s family name from “Tumlin” unless the husband consented. There was an agreement that the child’s passport be held by the wife’s lawyer.
The husband sought that the wife provide him with the child’s school reports and school photographs. The wife and the ICL opposed that order. Notwithstanding the child’s discomfort, and in accordance with Dr FF’s recommendation, the child is to be told that her father will receive her yearly and half yearly academic school reports. It is probable that the child will be anxious about her father receiving these documents. I accept that it’s not in the child’s best interests at this time for the husband to receive copies of the child’s school photographs.
It is not in the best interests of the child for there to be any order for time or communication between the child and her father. The husband ultimately accepted that that was so.
The wife sought orders that the husband spend no time with the child and have no communication with the child. It was the position of the husband and the ICL that no order should be made on the basis that that creates a clearer path for the child to reconnect with her father should she wish to do so at any time in the future. I accept that it’s appropriate that no order be made in relation to time and communication.
The husband sought an order that he be informed from time to time of the child’s place of residence. Both the wife and the ICL opposed such an order on the basis that the husband will know what school the child is attending he does not need to know the child’s residential address. However, the wife has applied for an injunction against the husband requiring him to stay away from the residence of herself and the child. As indicated below, I intend to make that order. In those circumstances, it is appropriate for the husband to know the address from which he is required to stay away.
The husband sought that the wife forward to him school material. I intend to make an order that he be able to contact the school for the purposes of receiving that material directly himself.
The husband sought an order that each party be restrained from removing the child from the Commonwealth of Australia. The husband submitted that the wife owns property in Greece and that she might be a flight risk. The wife has been in her current job for about 20 years. Her mother is permanently settled in Australia. Looking at the totality of the evidence there is no basis for me to conclude that the wife would not return with the child after she’d been on a holiday outside of Australia. I will consequently make the order sought under s65Y(2)(b) of the Act as sought by the wife. I’ll also make appropriate orders under s11 of the Australian Passports Act 2005 (Cth) with the intent that the wife have responsibility for obtaining and renewing the child’s passport or travel-related documents.
During final submissions the husband sought that the child no longer attend upon Mr C for therapy and that an alternate professional be found. That position was based on a couple of critical comments made by Dr FF about specific therapy provided by Mr C. Mr C has been working with the child since shortly after the separation. I accept the ICL’s submission that it’s inappropriate to change the child’s therapist. The wife has accepted Dr FF’s opinion that it would be best for the child if Mr C not provide therapy to both the child and herself and she has agreed to obtain an alternate therapist.
It is appropriate that if the husband wishes to send gifts, cards and letters to the child that the wife’s lawyer act as an intermediary or as a conduit for that to happen.
INJUNCTIONS
The wife has made an application, pursuant to s 68B of the Act, for orders to restrain the husband from assaulting, molesting, threatening or otherwise interfering with her, stalking her or coming within certain distances of her place of residence and employment.
The wife had in her favour an Apprehended Domestic Violence Order for a period of two years from the date of separation. She attempted to have that order extended unsuccessfully. Apart from some suggestion that there had been minor problems there is nothing in the husband’s behaviour since separation that would be a basis upon which non-molestation orders should be made. On the other hand, there is no reason for the husband to go near the wife’s place of employment or contact her employer or to come to the residence where the wife and child are living. I’m mindful of the current level of anxiety experienced by the wife and child. Given the other parenting orders that are going to be made it is appropriate to make orders aimed at lowering the level of anxiety experienced by both the wife and the child and for that reason I intend to make the restraining order sought by the wife.
The more difficult question relates to the husband being able to attend events, performances, presentations, parent teacher meetings and sporting activities at the child’s school. Given the level of the child’s current anxiety in relation to the husband’s involvement with her school it is appropriate pending further order that the husband be restrained from attending her school.
APPROACH IN PROPERTY CASES
In this matter my task is to:
172.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
172.2.Determine whether it is just and equitable to make an order altering those interests and if so;
172.2.1.Identify relevant contributions and assess them;
172.2.2.Consider relevant matters referred to in s 90SM (4)(d) – (g) of the Act;
172.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.
ONE OR TWO POOLS
The husband contends for two pools, namely a “main” pool and the “inheritance” pool. The husband submits that if such an approach is adopted the inheritance pool would comprise of all the property received by the husband by way of inheritance from the Ms Z Estate and is property to which the wife made no contribution. The husband further submits that the main pool, being the balance of the property, would lead to a property settlement order which would require the husband to pay the wife the sum of $600,000 based almost entirely on an assessment of the wife’s contributions to the “main” pool.
The assets which counsel for the husband identified as being derived from the husband’s inheritance are those on the balance sheet at item numbers 3, 8, 9, 10, 11 and 15 which total $3,094,204 (about 48.4 per cent of the total assets on the balance sheet). In broad terms, the husband is submitting that the wife should receive about 40 per cent of the “main” pool or about 20 per cent of the combined pools.
The wife submits that there should be one pool and that she should receive 32.5 per cent of those assets based on contributions.
I find there is no need to isolate these “inheritance” assets in order to carry out the contribution assessment and accordingly I intend to deal with all the assets in one pool.
BALANCE SHEET
The settled balance sheet is set out below. Where values are not agreed they appear in bold as determined by me. The reasons for each determination are set out under item numbers following the table.
| Assets | ||||||
| Item no. | Title | Description | Husband | Wife | Agreed/ Determined | Value |
| 1 | H | D Street, Suburb E | $1,100,000.00 | $1,400,000.00 | Determined | $1,400,000.00 |
| 2 | H | L Street Suburb M NSW (Land only) | $0.00 | $590,000.00 | Determined | $590,000.00 |
| 3 | H | 50 per cent share in J Street Suburb K NSW | $925,000.00 | $925,000.00 | Agreed | $925,000.00 |
| 4 | W | H Street, I Town Greece | $51,100.00 | $51,100.00 | Agreed | $51,100.00 |
| 5 | W | Bendigo Bank | NK | $8,974.00 | Determined | $8,974.00 |
| 6 | W | Motor Vehicle | $15,000.00 | $15,000.00 | Agreed | $15,000.00 |
| 7 | W | Jewellery | $6,000.00 | $6,000.00 | Agreed | $6,000.00 |
| 8 | H | Sydney Credit Union | $562,763.00 | $562,763.00 | Agreed | $562,763.00 |
| 9 | H | Shares with Computer Share | $1,121,934.00 | $1,121,934.00 | Agreed | $1,121,934.00 |
| 10 | H | Shares with N Ltd | $344,858.00 | $344,858.00 | Agreed | $344,858.00 |
| 11 | H | Shares with O Pty Ltd | $38,049.00 | $38,049.00 | Agreed | $38,049.00 |
| 12 | H | Motor Vehicle | $1,000.00 | $1,500.00 | Determined | $1,000.00 |
| 13 | H | Jewellery | $100.00 | NK | Determined | $100.00 |
| 14 | H | Contents Suburb E | $2,000.00 | $2,000.00 | Agreed | $2,000.00 |
| 15 | H | Money in Lawyers Trust Account | $101,600.00 | $101,600.00 | Agreed | $101,600.00 |
| 16 | H | ANZ Trust Account | $0.00 | $18,896.00 | Determined | $0.00 |
| 17 | W | First State Super | $186,138.00 | $186,138.00 | Agreed | $186,138.00 |
| 18 | H | Local Government Super | $287,039.00 | $287,039.00 | Agreed | $287,039.00 |
| 19 | W | Share in F Street Suburb G | $350,000.00 | $0.00 | Determined | $0.00 |
| 20 | W | Funds taken by wife from joint account | $260,000.00 | $0.00 | Determined | $0.00 |
| 21 | W | Legal fees | $613,290.00 | $426,844.00 | Determined | $426,844.00 |
| 22 | H | Legal fees | $328,167.00 | $328,167.00 | Agreed | $328,167.00 |
| Total assets | $6,396,566.00 | |||||
Suburb E (Item 1)
The single expert has provided two valuations. One, assuming some work on the property was done with council approval, at $1.4 million. The other, assuming the work was done without council approval, at $1.1 million. The wife called evidence from a town planner Mr JJ to the effect that in the event that there was a lack of council approval for works done at the property, any necessary approval would be able to be obtained with relative ease. The higher value for the property should be adopted.
The husband’s interest in the property at L Street, Suburb M (Item 2)
The legal title to this property is in the joint names of the husband’s parents. The husband and his parents have executed a deed which provides that the husband have an interest in the property to the extent of the land value of L Street. It is agreed that the land value currently is $590,000. The husband asserts however that what is in the written document does not represent the true position in relation to his ownership of L Street.
The husband asserts that he was bullied by the wife into entering into the financial arrangements with his parents in respect of the duplex known as L Street and says that notwithstanding any documents or alleged agreements reached between he and his parents, his parents are the rightful owners of the duplex at L Street where they currently live and to which they took title in about 1997, three or four years prior to the time the parties met.
As set out above, in 1992 the husband purchased a property at L Street for the sum of $200,000. He borrowed $140,000 from St George Credit Union. That borrowing was discharged in about 1993. The husband and his parents lived in this property until mid-1994. At that time the husband with the assistance of his father and other persons whom the father employed, demolished the property and built two duplexes on the land. Whilst the construction was taking place the husband and his parents lived at the husband’s brothers’ home.
The duplexes were completed in 1997. The husband says that his parents sold properties at Suburb KK and Suburb LL in about 1993 and contributed from the proceeds of those sales capital to start the construction of the duplexes in about mid-1994. The land was subdivided (so that there was independent titles for each of the duplexes) in 1995. Two lots were created which became known as lot 1 and lot 2. The husband retained and subsequently sold lot 2. Lot 1 was transferred into his parents’ name on 20 June 1997.
The husband now claims that he put $60,000 towards the construction costs and his parents put $400,000 towards the construction costs. The wife contests that evidence. There are a number of pieces of evidence that would point in a different direction to what the husband now says is the case.
Firstly, a letter was written by Ms MM, solicitor, dated 19 December 1995 to the husband’s parents following a conference that solicitor had had with them. In that letter the solicitor records the instructions received from the husband’s parents that as at that date they had contributed $140,000 towards the building costs of the duplexes and that they would probably pay another $20,000 making a total of $160,000. Ms MM recorded that the husband’s parents intended to make wills leaving the townhouse to the husband upon payment by him of $160,000 and that it was the husband’s intention to pay back the $160,000 or whatever exact amount it was that they contributed interest free by instalments of at least $5,000 per year. The husband gave evidence that he never repaid any of the $160,000 to his parents.
Documents from the valuer general’s office dated 1 July 1995 indicate that each of the lots (1 and 2) were valued at $140,000 ($280,000 in total).
In oral evidence the husband asserted that the overall construction costs turned out to be in the order of $483,000.
In their sworn written evidence, the husband’s mother says that by the time the two homes were built “we” (referring to herself and her husband) paid approximately $250,000 maybe more and the husband’s father says that it was “in excess of $250,000”.
The evidence of the husband’s parents was not tested and I accept their version is to be preferred over the bald uncorroborated statement of the husband that they contributed $400,000.
The evidence of the husband’s parents is also consistent with the agreement that was executed between the husband and his parents in 2005. Recital F to that agreement indicates that the husband’s parents contributed approximately $250,000 and the husband himself contributed over $200,000.
It’s not controversial that the husband, as a skilled tradesman, contributed a lot of the labour towards the construction of the duplexes.
If I accept the husband’s assertion that the construction costs were $483,000 (which figure did not include the value of the husband’s labour towards the building works) and that the husband’s parents contributed $250,000 towards those works I easily conclude the husband provided at least one half of the labour and material for the construction of the duplexes. He also provided all of the land value.
It logically would follow therefore that it was a reasonable deal for the husband’s parents to receive one of the duplexes on the basis that the husband would ultimately be entitled to the land value of that duplex.
That is in fact the effect of the written agreement that was entered into between the husband and his parents in 2005 except that there was an additional condition that the husband’s parents would be able to live in L Street for their life and the husband would not be able to access his remainderman interest in the land value of L Street until they ceased to live there.
I do not place any weight on the evidence of the husband’s parents that they will not honour their obligations under the Deed but will rather split the L Street property amongst all of their children. I intend to place the land value of L Street on the balance sheet at the agreed value of $590,000 but take into account when considering s75(2) factors the fact that that interest in L Street is a remainderman interest.
Wife’s bank account (Item 5), husband’s motor vehicle (Item 12) and husband’s jewellery (Item 13)
In respect of these items one of the parties asserted a figure and the other party indicated they had no knowledge as to whether or not that figure was correct. I adopt the figures asserted by the wife and the husband respectively.
The husband’s interest in the ANZ Trust (Item 16)
The husband was cross examined about whether or not he had properly accounted for an amount of approximately $18,000 in ANZ Master Trust, which is referred to in his 2015 tax return and is more fully detailed in Exhibit 11. The husband thought that that asset was part of item 9 on the balance sheet “shares with Computershare” in the sum of $1,121,934. I suggested that the accountant whose name appears in the exhibit be contacted to clarify whether or not that assertion by the husband is accurate. However, that did not eventuate. Nonetheless, I cannot comfortably assume that the husband’s assumption is incorrect and I shall not add this as an additional item to the balance sheet.
The wife’s interest in her mother’s property at Suburb G (Item 19)
The husband asserts that the wife has a 25 per cent share in the Suburb G property and that the value of that share is $350,000. The first problem I have is there is no evidence of the value of this property nor is there any agreement as to what 25 per cent might be worth. Secondly, the short history in relation to the Suburb G property is that when the wife’s parents purchased that property they registered the name of the property not only in their own names but in their two children’s names as well. This created a 25 per cent interest on the title in the name of the wife. I accept the wife’s evidence that she made no contribution whatsoever to the interest in the property. At a certain point in time, in about March 2004, at the instigation of the wife’s father before his death, the wife and her brother both transferred legal title of the property back to her parents. I find that the wife has no current beneficial interest in that property, although she is an only child and is likely ultimately to inherit that property should she outlive her mother. The maternal grandmother is currently 74 years of age, appeared robust and was not questioned in respect of her health. I have no evidence about the wife’s mother’s health otherwise. Item 19 will be marked as nil.
Funds alleged taken by the wife from joint accounts (Item 20)
The husband alleges that prior to separation, the wife removed monies from accounts of the parties without his knowledge or consent. The quantification of the amount commenced at $1 million, reduced to about $600,000 and the husband settled on a figure of $260,000.
In support his claim, the husband refers to pages 60-107 of the exhibit book that forms part of his trial affidavit. Those pages are photocopies of pages from a St George Passbook account with an account number ending 874 in the name of the wife. Counsel for the husband did not attempt to provide any summary of relevant transactions in that part of the exhibit nor in final submissions did counsel for the husband make any submission based upon that part of the exhibit.
The wife in her affidavit in reply responds to the general assertion that she pilfered joint funds and secreted them from the husband during the marriage. The wife says that the funds were withdrawn under the husband’s direction.
An example of the difficulty with the husband’s analysis was referred to during the trial when the year 2005 was taken as an example.
The husband highlighted various withdrawals. The wife in her responding affidavit said that two of them related to mortgage payments, of $1,500 each. There was a figure of $70,000 odd that went towards the construction costs of the I Town property in Greece. The balance was $10,700 for October, November and December 2005 was what the wife asserted she withdrew in cash (and there was no contest that the parties paid their everyday expenses in cash) to live on for those three months. Calculated over those three months it averages at an amount of a bit over $1,800 per week. The husband was not prepared to accept that that amount could have been expended by them as a couple in 2005 even though on his current financial statement as a single man the husband indicates that his weekly expenditure is in the order of $3,000 per week.
I do not accept the husband’s contention that the wife made available to herself funds to a total of $260,000 from which he received no benefit.
Wife’s legal fees (Item 21)
Exhibit 20 is a letter from the wife’s lawyers to the wife dated 29 July 2016 setting out legal fees that had been paid. The fees not only relate to these proceedings but also to the ADVO proceedings. The total amount recorded as the wife paying her lawyers was $683,817.
On the day of the separation the wife drew down on the facility that the parties had on the matrimonial home to an amount of $151,400. On 20 April 2012 the wife withdrew an additional $5,200 from the re-draw facility on the Suburb T mortgage. The wife also after the separation received the net proceeds of the sale of the Suburb T property, being an amount of about $364,632.99. The wife says that she did the following with those monies:
205.1.Purchased a motor vehicle for $36,000;
205.2.Repaid the maternal grandmother $11,000;
205.3.Repaid the maternal grandmother $2,200 which was paid as an initial retainer to the wife’s lawyer;
205.4.$30,557.40 for payment of a tax liability;
205.5.$4,460 for NRMA Home Security to establish a home security system at the Suburb G property;
205.6.$4,194.47 to Centrelink for overpayment of the Family Allowance benefit.
The wife asserts that taking into account the sum of $8,974 that appears at item 5 on the balance sheet, and living costs in the amount of $423,844 should be added back for the wife’s legal costs. She further asserts that the remaining amount of her legal costs have been met from post-separation income. These assertions were not the subject of challenge in cross-examination and I accept the wife’s assertion as to the amount that should be added for her legal fees.
WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE
Both parties seek different property settlement orders pursuant to s 79 of the Act. The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities. As the balance sheet set out above demonstrates, the assets remaining with each party are $5,702,510 held by the husband and $694,056 held by the wife.
I find that in all the circumstances, it is just and equitable to make an order altering property (including adjusting liabilities).
CONTRIBUTIONS
The wife submits that her contributions would be assessed at about 32.5 per cent on all of the assets.
The husband’s application is to pay $600,000 to the wife. The assets that are currently held by the wife in her own name on the balance sheet total $694,056. In the event that the husband pays the wife $600,000 she will receive $1,294,056 which is 20 per cent of the overall assets. It is consequently the husband’s application that a finding be made that the wife is entitled to 20 per cent or a little less of the overall assets based on contributions.
Initial Contributions
At the time of the cohabitation the wife owned:
211.1.$80,930 in a St George Bank term deposit
211.2.Approximately $10,000 in other savings
211.3.Superannuation of about $19,500
211.4.A motor vehicle
211.5.Household goods and personal effects
The wife was the legal owner of a 25 per cent interest in the Suburb G property at the date of marriage but says, and I have accepted, she had no beneficial interest in that property and the legal title was subsequently transferred back to her parents.
At cohabitation, the husband owned:
213.1.$29,122 in Australian Credit Union Account
213.2.An interest in 2 L Street, Suburb M
213.3.An interest in the land value of L Street, Suburb M
213.4.Superannuation of $76,682 with Australian Super
213.5.A Utility motor vehicle
213.6.Household goods and personal effects
In relation to 2 L Street and 1 L Street, I don’t have any valuation evidence as to what the husband’s interest in those properties was worth as at the date of the marriage of the parties. As mentioned above, I know that the land value of the two parcels upon which each of the duplexes were built had a combined value of $280,000 in July 1995. I know that 2 L Street sold in November 2006 (almost five years after the marriage of the parties and after the demolition of the old dwelling and construction of the new duplexes) for a sum of $625,000. It has been agreed that the land value of 1 L Street, has a current value of $590,000.
The husband says that 2 L Street was unencumbered at the time of the marriage. As set out above, I have found that the husband provided probably in the vicinity of $200,000 towards the construction costs of the duplexes. I have no evidence as to how that was funded. If it was funded by way of borrowing from a financial institution I do not know what the level of that borrowing was at the date of the marriage. I am prepared to assume that as at the date of the marriage the husband had equity in the two properties at Suburb M of at least $280,000.
Consequently, I find that the husband’s assets were of greater value than the wife’s at the commencement of the marriage.
Financial Contributions
The most significant financial contribution made to the current net worth of the parties was the inheritance that the husband received from the estate of the late Ms Z who died prior to the parties’ separation on 20 January 2011 of approximately $3 million. As indicated above those assets are represented at items 3, 8, 9, 10, 11 and 15 on the balance sheet and total $3,094,204 (about 48.4 per cent of the total assets on the balance sheet)
The wife contributed income earned by her in paid employment during the 11 years of their marriage. The wife generally earned a higher income than the husband during the marriage. The husband was at all material times in paid employment and his income went into the joint account that was primarily controlled by the wife. The wife would withdraw monies from time to time in cash and that cash was used on a regular basis to pay mortgages and living expenses.
In about mid-October 2005 the husband received a redundancy package of about $100,000. The parties had been together for four years and consequently I accept the wife’s submission that the redundancy should not be viewed in total as an additional contribution made solely by the husband (see Burke & Burke (1993) FLC 92-356).
Both parties contributed their superannuation interests throughout the marriage.
The wife’s mother gifted to the wife an interest in the I Town property in Greece in about 2004 subject to a life interest in her favour. It is common ground that the parties transferred to Greece amounts which totalled about $140,000 for the purposes of constructing a dwelling on a block of land at I Town, Greece. The husband provided labour and applied skills in doing work to rectify what he saw as defects to the Greek property, employing labourers. The husband asserted in his oral evidence that he thinks that perhaps some of the $140,000 did not find its way into the cost of the construction. I am unable to make a finding that that was so. The parties have agreed that the current interest that the wife has in the I Town property has a value of $51,100 because it is subject to a life interest of the wife’s mother. On the face of it that means the parties have lost, in an agreed joint venture, an amount of approximately $90,000 (without making any allowance for the husband’s labour).
The wife’s mother gifted the parties small amounts of cash regularly but those monies were repaid to the wife’s mother shortly before and shortly after separation (an amount of approximately $16,000).
Non-Financial Contributions
The husband applied his skills as a qualified tradesman to the properties acquired by the parties during cohabitation but I have no evidence that would enable me to estimate what value that added to the property but I am prepared to accept that it was a contribution to the maintenance of property made by the husband.
I accept that for the 10 years of the marriage the wife was the primary homemaker undertaking the bulk of household tasks during the marriage, including cooking, washing and drying dishes, cleaning, dusting, washing, ironing and mending clothes.
The wife was responsible for managing the parties’ finances at the direction of the husband. She went to the bank and withdrew cash to meet the parties’ everyday living expenses, arranged payments of household bills and undertook grocery shopping.
The wife’s evidence is that, notwithstanding that the child of the marriage lived at her mother’s home in her mother’s care, substantially from the time the child was eight weeks old, she would regularly go to her mother’s home and attend to the child at her mother’s home and when the child commenced school, would go to her mother’s home and attend to the child prior to school and after she had finished her school teaching, return to her mother’s home and be with the child after school. I accept as factual her description of multitasking on a weekend whilst the child was with her where she completed homemaking chores and she played games with the child.
The husband asserts that he contributed as homemaker and parent to the child to the extent that he was permitted. I find that the husband has not established that he fulfilled any meaningful role as parent to the child. It is common ground that the child lived substantially with the maternal grandmother and that the husband did not attend the maternal grandmother’s home whilst the child was living there.
I accept that the husband effectively did not assist with the care of the child. He did not help feed, bathe or dress her, did not prepare meals for her as she grew older, did not play with her, read to her or spend any meaningful time with her.
The husband spent time during the marriage attending to the needs of the late Ms Z, ran errands for her and helped maintain her home. The husband in oral evidence claimed that this only involved him in attending on Ms Z on a weekly basis.
Contributions by the Wife’s Mother
The wife also seeks to rely upon contributions made on her behalf by her mother in the role of homemaker and parent to the child.
The issue arises as to whether or not contributions made by the maternal grandmother can be treated as contributions pursuant to s 79(4)(b) or (c) of the Act which are in the following terms:
...
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
...
As discussed in Sane Daramy & Gueye Sane (2015) FamCA 180 at [195] – [204]:
195. In the decision of Mullane J in AB & ZB (2003) FLC 93-140, his Honour concluded, “...whereas paragraphs (a) and (b) subsection 79(4), which deal with contributions to property, specifically include, contributions by a person on behalf of one of the parties to the marriage, paragraph (c), which is about contributions to the welfare of members of the family, does not.”
196. In Rickaby (1995) FLC 92-642 Lindenmayer J was dealing with rent free accommodation provided to parties to a marriage for seven years and said:
In the circumstances of this case, I regard that as a significant contribution to the welfare of the family on behalf of the wife, see Gosper and Gosper (1987) FLC 91-818.
197. However, Mullane J in AB & ZB concluded:-
But in neither Gosper’s case nor in Rickaby did the judgment acknowledge the difference in the wording I have referred to between paragraph 79(4)(c) of the Family Law Act in providing for contributions to the welfare of the family, compared with the provisions of paragraphs 79(4)(a) and (b), providing for contributions to property. Accordingly I do not consider that either case is persuasive authority that contributions to the welfare of the family made by another person on behalf of one or both of the parties to a marriage can be taken into account under paragraph 79(4)(c).
198. With respect, whilst Justice Mullane is correct in his conclusion in relation to paragraph 79(4)(c) of the Act, that is not the end of the matter. Although there never should be a double counting, it will often be the case that a contribution is not just a contribution in the role of homemaker and parent (that is, a contribution under s 79(4)(c)), but also a significant contribution under s 79(4)(b) (see Ferraro & Ferraro (1993) FLC 92-355 at page 79,568 and the cases quoted by the Full Court, namely Dawes (1989) 13 FamLR 599 at 613; Harris (1991) 15 FamLR 26 at 29 - 30; Napthali (1989) FLC 92-021 at 77,357) [These are cases where non-financial contributions have been made to the acquisition of property of the parties].
199. In addition, s 79(4)(e) of the Act provides that the court can take into account “matters referred to in sub-section75(2) so far as they are relevant:. Section 75(2)(o) of the Act provides that the court can take into account any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
200. The Full Court decision in Aleksovski v Aleksovski (1996) FLC 92-705 (Baker and Rowlands JJ) said at page 83,434:
In our opinion, the Gosper principle may extend to contribution by grandparents of a non financial kind pursuant to s 75(2)(o).
201. In Aleksovski Kay J disagreed on that point and said at page 83,440:-
It seems to me that the extension of Gosper principle to child-minding by grandparents is problematic. Whilst it is true that the catalyst for the provision of the services is the relationship between parent and child (that is, the grandparent and the parent), frequently the service is provided out of the natural love and affection between the parent and the grandchild and for the reciprocal benefits that flow back to the care giver in terms of personal satisfaction, relationships and “occupational therapy”.
Absent any direct evidence as to the commercial considerations surrounding the arrangement with the care giving grandparent, in my view, it is generally inappropriate to place any significant weight upon such a contribution.
202. The Gosper principle referred to was a statement made by Fogarty J in Gosper &Gosper (1987) FLC 91-818. In Gosper at page 76,168 Fogarty J opined the following:-
The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to Court in such a case to look at the actuality and treat that as a ``financial contribution made directly... on behalf of'' the spouse relative (see for example Rainbird, Matthews, W., Underwood, Abdullah, Freeman, cf. Cleary, Hogan J. in Freeman, and Antmann).
In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made ``because she was a daughter of that family'' as was said in W.'s case at p. 75,527.
It is clearly a ``financial contribution'' and one ``made directly'' to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made ``on behalf of'' one spouse.
In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.
203. The Full Court in Kessey & Kessey (1994) FLC 92-495 said that there was nothing they wanted to add to Fogarty J’s conclusions.
204. However, the Full Court in Kessey put the following gloss on Gosper at page 81,150:
There is certainly nothing inconsistent, in our view, between the trial Judge's approach and the statements of principle made by Fogarty J. in Gosper. It may well be, however, that the trial Judge's approach and our approval of it, go somewhat further than what was said by Fogarty J. in Gosper. This is because this case would establish that where there is no evidence of any intention by a parent-donor as to whether he or she wished to benefit only his or her child or also to benefit the spouse of the child as well as the child, then the fact of the parent-child relationship, especially in circumstances where that has been a relationship of support on the part of the child, will be sufficient to establish a contribution of the donation by or on behalf of the child of the parent. In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.
Clearly in this case the contribution by the wife’s mother in caring for the child of the parties might be able to be dealt with under s79(4)(b) of the Act given that that contribution freed up both parents to be able to involve themselves in income earning activities unfettered by the demands of a young baby who grew through toddlerhood into childhood.
However, as the obiter comments of Baker and Rowlands JJ in Aleksovski demonstrate, contributions by grandparents are normally dealt with under s 79(4)(e) with reference to ss 75(2)(o) of the Act and I prefer to adopt that approach rather than considering the maternal grandmother’s contributions pursuant to s 79(4)(b) of the Act.
Kennon
The wife submits, pursuant to the principles articulated in Kennon (supra) that her contributions should be viewed as being made in the face of the abusive and controlling behaviour of the husband. The husband submits that the court would not find that the wife had established that anything he did made the wife’s contributions significantly more arduous.
In relation to the allegations that are earlier set out I concluded that there were incidents of family violence during the marriage. That history however was not one of systemic family violence and I’m not satisfied that the wife has established the necessary connection between any behaviour by the husband and particular contributions that she made which became significantly more arduous. I consequently conclude that the principles articulated in Kennon do not apply in this case.
Post Separation Contributions
The parties have continued to work and maintain their assets in the four and a half years since the separation.
Whilst the husband has paid child support after separation, all the contributions made as parent post separation have been made by the wife to the exclusion of the husband.
What happened to the amounts the wife withdrew from the re-draw facility on the Suburb T property and received from the sale of the Suburb T property are dealt with above in the discussion about item 21 on the balance sheet.
Conclusion on contributions
I take into account the lack of direct contribution made by the wife to items 2, 3, 8, 9, 10, 11 and 15 on the balance sheet. The value of those items represents approximately 57 per cent (3,681/6396) of the overall net assets of the parties. The wife has however over the 10 year period of the marriage made important contributions and in the four and a half years since the separation, as between the husband and wife, made all of the contributions in the role of parent. I find that based on the respective contributions of the parties there should be a 72.5/27.5 split of the net assets of the husband and wife, in the husband’s favour, based upon those contributions.
FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS
The wife submits that there should be a 12.5 per cent adjustment in her favour in respect of s 79(4)(d) – (g) matters.
The husband submits that there should be little if any adjustment between the parties for s 79(4)(d) – (g) matters. The substance of the husband’s submission is that the wife is in full time employment, has the advantage of living in her mother’s home and has her mother to assist her in the care arrangements for the child.
The parties were married for 10 years.
Both parties are of similar age and are in reasonable health.
The wife has sole care of the parties’ daughter now aged 12. Orders will be made that she have sole parental responsibility and that the child will have no contact with her father.
Both parties work full time.
I take into account that the husband’s interest in L Street cannot be accessed by him without agreement with his parents until they vacate the property. Based upon the contribution findings, the husband will have a significantly greater proportion of the overall assets than the wife.
The husband currently has a greater income than the wife owing to the income that he receives from investments and shares which are worth over $2.3 million although I acknowledge that that income will reduce if the wife receives, as a result of these orders, a portion of the assets from which the husband is currently deriving income.
On the applications of both parties, the husband will retain the unencumbered former matrimonial home, a second property at Suburb K and substantial superannuation interests.
The wife has the benefit of continuing occupancy of the Suburb G property, if she chooses to reside there and the ability to maintain a longer term interest in the I Town property in Greece which is subject to the life interest of her mother.
The extent of the wife’s mother’s contribution on behalf of the wife as surrogate parent to the child of the marriage increased over time. It commenced when the child was 8 weeks old. At that time, on average, the child was spending three or four nights a week with her parents but that tailed off from about September 2005. For a significant period the child only spent a couple of nights a week with her parents and the wife’s mother otherwise looked after the child overnight. In the last 18 months of the marriage, that increased to six out of seven nights. The wife’s mother met the costs of the child’s day to day living expenses including purchasing gifts, toys, clothes and furniture for her. The wife’s mother primarily provided the child’s meals throughout the marriage. The wife’s mother did not do all this as occupational therapy. It was a significant financial and non-financial contribution by the wife’s mother, made on behalf of her daughter. The maternal grandmother fulfilled a role that the husband and wife would have otherwise had to have undertaken.
Taking these matters into consideration I find that the wife should receive a 7.5 per cent adjustment for s79(4)(d)-(g) matters.
JUST AND EQUITABLE
The husband sought an overall adjustment to the wife of about 20 per cent of the net assets. The wife has sought an adjustment of 45 per cent.
Consistently with my findings in relation to contributions and s79(4)(d)-(g) matters the overall assets of the parties should be divided as to 65 per cent to the husband and 35 per cent to the wife.
That could be achieved by distributing the assets in the following way:
| H gets 65 per cent | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | D Street, Suburb E | 100 per cent | $1,400,000 |
| 2 | L Street Suburb M NSW (Land only) | 100 per cent | $590,000 |
| 3 | 50 per cent share in J Street Suburb K NSW | 100 per cent | $925,000 |
| 8 | Sydney Credit Union | 100 per cent | $562,763 |
| 9 | Shares with Computer Share | 100 per cent | $1,121,934 |
| 10 | Shares with N Ltd | 100 per cent | $344,858 |
| 11 | Shares with O Pty Ltd | 100 per cent | $38,049 |
| 12 | Motor Vehicle | 100 per cent | $1,000 |
| 13 | Jewellery | 100 per cent | $100 |
| 14 | Contents Suburb E | 100 per cent | $2,000 |
| 15 | Money in Lawyers Trust Account | 100 per cent | $101,600 |
| 16 | ANZ Trust Account | 100 per cent | $0 |
| 18 | Local Government Super | 100 per cent | $287,039 |
| 22 | Legal fees | 100 per cent | $328,167 |
| Husband pays Wife | $1,544,742 | ||
| Net Assets to H | $4,157,768 | ||
| W gets 35 per cent | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 4 | H Street, I Town Greece | 100 per cent | $51,100 |
| 5 | Bendigo Bank | 100 per cent | $8,974 |
| 6 | Motor Vehicle | 100 per cent | $15,000 |
| 7 | Jewellery | 100 per cent | $6,000 |
| 19 | Share in F Street, Suburb G | 100 per cent | $0 |
| 20 | Funds taken by wife from joint account | 100 per cent | $0 |
| 21 | Legal fees | 100 per cent | $426,844 |
| 17 | First State Super | 100 per cent | $186,138 |
| Wife receives | $1,544,742 | ||
| Net Assets to W | $2,238,798 | ||
Standing back I consider that that distribution of assets is just and equitable.
It would appear from the distribution table that the husband would have sufficient liquid funds to make the cash payment required in the sum of $1,544,742. In the event that the husband fails to pay that sum to the wife within 42 days the Suburb E property is to be sold. The wife would receive the whole of the net proceeds of the Suburb E property. There would still be an amount of $144,742 owing by the husband to the wife.
I certify that the preceding two hundred and fifty seven (257) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 12 October 2016.
Associate: M. Barr
Date: 12 October 2016
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Fiduciary Duty
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