TURNER & TURNER
[2013] FCCA 324
•4 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TURNER & TURNER | [2013] FCCA 324 |
| Catchwords: FAMILY LAW – Property – de facto relationship of about 16 years – dispute over whether some or all of a substantial lump sum payment which the father received 3 years ago as a result of a workplace injury but which is all gone should be added back to the pool – dispute over which party should be given first option to retain the home. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 90SF, 90SM |
| Cases cited: Stanford & Stanford (2012) 293 ALR 70 |
| Applicant: | MS TURNER |
| Respondent: | MR TURNER |
| File Number: | NCC 481 of 2010 |
| Judgment of: | Judge Terry |
| Hearing dates: | 4, 5, 6, 7 & 8 February 2013 |
| Date of Last Submission: | 8 February 2013 |
| Delivered at: | Newcastle |
| Delivered on: | 4 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Boyd |
| Solicitors for the Applicant: | Everingham Solomons |
| Counsel for the Respondent: | Ms Obradovic |
| Solicitors for the Respondent: | Penny Waters Armstrong Legal |
| Solicitor Advocate for the Independent Children’s Lawyer: | Ms O’Rourke |
| Solicitors for the Independent Children’s Lawyer | Legal Aid NSW |
ORDERS
PARENTING
Subject to any other orders the mother shall have sole parental responsibility for the children [X] born [in] 1998, [Y] born [in] 2000 and [Z] born [in] 2003.
The mother shall not without the written consent of the father or an order of the court:
(a)change the children’s names;
(b)relocate the children’s place of residence from [T].
The mother is restrained and an injunction is granted restraining her from taking the children to further counselling with Ms R or any other person employed by or having a connection with [omitted].
The children shall live with the mother.
The children shall spend time with the father as agreed between the mother and the father.
The mother shall keep the father advised of the names of the schools the children are attending and the father may obtain from the children’s schools copies of school reports, newsletters, order forms for school photographs and other information normally provided to parents and the mother is restrained and an injunction is granted restraining her from giving any instruction to the children’s schools designed to inhibit the schools providing these documents or information to the father.
The mother shall promptly notify the father if any of the children are involved in a medical emergency or an accident requiring attendance at hospital or are diagnosed as suffering from a serious medical condition. The father may obtain from the children’s treating medical practitioner(s) information about the children’s treatment and prognosis and any other information normally provided to parents and the mother is restrained and an injunction is granted restraining her from giving any instruction to any person designed to inhibit the provision of this information to the father.
Each party shall keep the other advised of their residential address, and mobile and if they have one landline telephone number and shall advise the other party of any change to those details within 7 days of the change occurring.
The mother shall promptly inform the children of the father’s current contact details and keep them advised of any change to those details.
The mother shall bring the children to the offices of Legal Aid NSW in [T] or to some other place in [T] nominated by the Independent Children’s Lawyer at a time agreed between the mother and the Independent Children’s Lawyer and failing agreement at a time nominated by the Independent Children’s Lawyer for the purpose of the Independent Children’s Lawyer or at the election of the Independent Children’s Lawyer a family consultant explaining the orders to the children.
Between the date of these orders and the conclusions of the children’s appointment pursuant to order (10) the mother is restrained and an injunction is granted restraining her from discussing the orders or the content of this judgment with the children or taking the children for any counselling whatsoever.
If the mother takes the children or any of them to a counsellor within the next twelve months the mother shall provide that counsellor with a copy of these orders and reasons for judgment.
The father shall at the request of the mother sign all documents required to give the mother sole control of the money in the Managed [omitted] Investment accounts held in trust for the children.
PROPERTY
The father shall within 60 days of the date of these orders:
(a) pay the mother the sum of $135,296.00;
(b)refinance into his sole name the amount owing to [O] Credit Union secured by mortgage over Property K being the land contained in Folio Identifier [omitted] (“the Property K property”).
Contemporaneously with the father complying with Order (14) the mother shall sign all documents and do all acts and things required to transfer to the father at the expense of the father the whole of her right title and interest in the Property K property and the father shall thereafter indemnify the mother and keep her indemnified from liability for the loan secured by the mortgage and for all rates taxes and outgoings owing in respect of the property.
If the father fails to comply with Order (14) then the mother shall within a further 60 days:
(a)pay to the father the sum of $149,704.00;
(b)refinance into her sole name the amount owing to [O] Credit Union secured by mortgage over the Property K property.
Contemporaneously with the mother complying with Order (16) the father shall sign all documents and do all acts and things required to transfer to the mother at the expense of the mother the whole of his right title and interest in the Property K property and the mother shall thereafter indemnify the father and keep him indemnified from liability for the loan secured by mortgage over the property and for all rates taxes and outgoings owing in respect of the property.
If the mother fails to comply with order (16) the father and the mother shall forthwith do all acts and things and sign all documents required to list the Property K property for sale on the following terms:
(a)the property shall be listed for sale with a real estate agent agreed between the parties;
(b)in the event that the parties cannot agree on the nomination of such agent they shall jointly approach the President of the Real Estate Institute of New South Wales and accept his or her nomination of a real estate agent to sell the property;
(c)in the event that the parties are unable to agree on a listing price, the time of listing, the method of sale or the conditions of sale they shall accept the recommendations of the real estate agent appointed pursuant to these orders in respect of each such matter;
(d)upon completion of the sale the proceeds of sale shall be applied as follows:
(i)in payment of the costs and expenses of sale including agent’s commission and legal costs:
(ii)in payment of adjustments, if any;
(iii)in payment of the amount owing to [O] Credit Union;
(iv)in payment of the balance as to 60% less $21,296.00 to the father and as to 40% plus $21,296.00 to the mother.
The father shall contemporaneously with either the transfer of the Property K property to the mother or the sale of the property as the case may be pay all monies and do all acts and things required to secure the removal of the caveat lodged over the property by Penny Waters Armstrong Legal.
Pending the transfer or sale of the Property K property the father shall be entitled to occupy the property to the exclusion of the mother and shall pay the mortgage instalments, rates instalments and other outgoings as they fall due.
Subject to the preceding orders each party is declared the owner to exclusion of the other of all property in their possession or under their control.
If either party refuses or neglects within 14 days of a written request to do so to sign any documents necessary to give effect to these orders the Registrar of the Newcastle Registry of the Federal Circuit Court of Australia is hereby appointed pursuant to s.106A of the Family Law Act 1975 to execute such documents on behalf of such party.
IT IS NOTED that publication of this judgment under the pseudonym Turner & Turner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 481 of 2010
MS TURNER
Applicant
And
| MR TURNER |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Turner and Mr Turner cannot agree about:
i)parenting arrangements for their children aged 14, 12 & 9 and
ii)a division of property following the end of their 16 year de facto relationship.
Since the parties separated in June 2009 the children have lived with the mother and as a direct result of a relentless campaign conducted by the mother have spent almost no time with the father and are hostile to him.
The mother sought orders that the children live with her, that she have sole parental responsibility for them and that they spend time with the father in accordance with their wishes. As I observed during submissions this last proposal was in the circumstances of this case a prettily dressed up application for a “no time” order.
The father sought orders that the parents have equal shared parental responsibility for the children and that they live with him and spend defined time with the mother.
In the alternative the father sought orders that the children live with the mother and spend weekend and holiday time with him. During cross-examination he said as follows:
I don’t think the children living with me is possible the way things are but I would like to be able to see the children on weekends.
The Independent Children’s Lawyer took the view that restoration of the children’s relationship with the father was not possible in light of the mother’s intransigence, the ages of the older children and the fact that the children were at the extreme end of the alignment spectrum. The Independent Children’s Lawyer proposed that orders be made in similar terms to those sought by the mother.
The property pool is modest and in real terms consists of a home subject to a very small mortgage, two motor vehicles and some superannuation in the mother’s name.[1]
[1] The father has such a tiny amount of superannuation that it is not worth mentioning it
The principal issues in dispute concerning the property were:
i)Whether some or all of a lump sum payment which the father received after separation as a result of a workplace injury but which no longer exists should be added back to the pool as a notional asset.
ii)the appropriate percentage findings for contributions and whether there should be an adjustment in either party’s favour for s.90SF matters;
iii)which party should be given first option to retain the home.
The mother sought the add-back and proposed that she be given first option to retain the home. She proposed that she also retain her motor vehicle and superannuation and that the father retain his motor vehicle and the notional asset.
The mother’s counsel submitted that this would result in an approximate 55/45 division of the pool in the mother’s favour, which was less than the 62.5/37.5 to which she was entitled and was an entirely reasonable outcome given that she would have the sole care of the children in the future.
The father opposed the addback and sought first option to retain the home. He proposed that he pay the mother $40,000.00 and that she retain her motor vehicle and superannuation.
The father’s counsel submitted that the pool should be divided 70/30 in the father’s favour because he had made the greater financial contribution and because he had an uncertain working future.
The Evidence
The mother relied on her amended initiating application, amended reply and financial statement filed on 8 January 2013 and on her affidavit filed on 30 January 2013.
The father relied on his amended response, financial statement and affidavit and the affidavits of his friend Mr B and his niece Ms B, all filed on 8 January 2013.
Two family reports, one released on 4 August 2011 and the other on 22 August 2012, were prepared by Ms T, a Regulation 7 Family Consultant.
The mother, father and Ms T were cross-examined. Mr B and Ms B were not required.
The witnesses
The mother was a poor witness. I will refer during the course of this judgment to specific instances where her evidence was unsatisfactory but two matters of particular concern stand out. The first is the shifting stories the mother told about the “cool room incident” which unfortunately has become part of family mythology for the mother and children; the second the mother’s apparent expectation that I would place weight on her claim that the father drugged and sexually assaulted her on 15 June 2009 when she declined to allow the claim to be tested by giving evidence about what actually happened.
The mother showed no emotion when cross-examined about the parenting issues and she stuck rigidly to script. It was as if she believed that all she had to do was sit in the witness box long enough and stonewall any alternative suggestions long enough and she would prevail.
The mother behaved in a similar fashion when interviewed by Ms T who said as follows:
The mother was then asked what she thought should happen next for the children and the father. The mother said "I want them to have a healthy relationship with their father." When asked if she wanted them to spend time with the father she repeated "I want them to have a healthy relationship with the father." When asked if this meant she wanted the children to spend time with the father she doggedly repeated again "I want them to have a healthy relationship with their father."[2]
[2] Family Report released 22 August 2012 paragraph 32
When the mother was asked during cross-examination to explain inconsistencies in her case (for example the inconsistency between her assertion at trial that she was happy for the children to spend time with the father if they wished and her earlier assertion that she feared for their safety if they spent time with him) she struggled to come up with a response.
The father was also a poor witness on occasions. He was unreliable about dates and he minimised the extent of his transgressions during the relationship. He seemed almost at the end of his tether with the court proceedings.
The father made little attempt to properly explain what had happened to the lump sum he received in late 2009.
Ms T produced two detailed Family Reports.
The mother relied on the recommendations in the second report but she was highly critical of Ms T. She said that she had found attending on her for the first report interviews “extremely upsetting and extremely disturbing.”[3] She alleged that Ms T called her a liar and a bad parent[4] and that Ms T called [X] a liar.
[3] Mother’s affidavit paragraph 95
[4] Mother’s affidavit paragraph 92
The mother complained bitterly about the fact that Ms T required the children to see the father during the second report interviews. She claimed that after this encounter she “saw them physically shaking and ...hugged them and felt their hearts pumping.”[5] She said that she took the children to a GP soon after the interviews and they were all put on a mental health plan.
[5] Mother’s affidavit paragraph 99
Ms T was cross-examined at length on the fourth day of the hearing and questioned about these issues and I am satisfied that she acted in a professional manner in conducting her interviews. I reject the mother’s evidence that Ms T called either the mother or [X] liars. At best these are likely to be perceptions by the mother and [X] arising out of Ms T challenging them about their views or stories.
Ms T also challenged the father and commented critically about some of his responses and some of his actions, and in this difficult matter the court would not have been assisted by a report which simply recounted without challenge the stories told by the participants.
Ms T gave a convincing explanation for why she insisted on the children spending time with the father during the second report interviews.
It was abundantly clear that Ms T never approached this matter with a pre-conceived view and that she was fully alive to the complexities of the situation within this family. Her report is a valuable piece of evidence although how much weight I ultimately place on her opinions and recommendations will depend on my assessment of the evidence as a whole.
Background
The mother and father commenced cohabitation in either early 1992 (according to the father) or “in or about 1993” (according to the mother). Nothing turns on which date is correct.
There are three children of the relationship: [X], born [in] 1998, [Y], born [in] 2000 and [Z], born [in] 2003.
The parties met and commenced living together in [T]. In or about late 1993 they moved to [M] to run the [business omitted] and in or about 1994 moved to Sydney to manage a [business] but in 1995 they returned to [T] where they remained.
The mother was in paid employment throughout the relationship save for periods when she was on maternity leave.
The father was in paid employment between the commencement of the relationship and August 1995 when he had a workplace accident. He received fortnightly workers compensation payments until 1999 and then received a lump sum of $663,000.00. The parties used about $220,000.00 of the lump sum to purchase and renovate a home at Property K.
In 2001 the father commenced generating income again as the result of purchasing a [omitted] which he worked for 2 years. In 2004 he returned to work as a [omitted] but on 17 November 2004 he had a second workplace accident and once again went onto workers compensation payments.
The parties separated for about 4 months in 2008 following the father assaulting the mother and finally separated on 9 July 2009 when the mother left the home with the children while the father was in Newcastle for medical treatment.
On 25 September 2009 the mother applied for an Apprehended Domestic Violence Order (ADVO) against the father. The father opposed the application and an interim ADVO was made pending a final hearing. The children were named as protected persons but the interim ADVO made provision for the father to have telephone communication with them and to spend time with them in accordance with family law orders.
I was not provided with any information about the basis for the mother’s application.[6]
[6] The information about this in the Case Outline filed by the Independent Children’s Lawyer is not evidence, and the mother provided only a copy of the interim orders and not a copy of the application.
The mother and father gave differing evidence about the time the children spend with the father immediately after separation but on any view it was extremely limited.
The mother said that [X] and [Z] saw the father at [sport] matches and [sport] training between July 2009 and October 2009, that [X] spent time with the father on a Sunday afternoon in September 2009 and that [X] and [Y] spent four hours with him on 23 December 2009.
The father said that he saw [X] twice and on one occasion took him to a [sport] carnival at [omitted], saw [Y] for a couple of hours on another occasion and continued to attend [Z]’s school to do reading and sometimes had lunch with her.
The mother offered no explanation for why the children’s time with the father was so limited after separation. She did not suggest in her trial affidavit that the father was uninterested in seeing them or that apart from one isolated occasion in relation to [Y] any of the children complained about the time they did spend with him or protested at the idea of seeing him.
Nevertheless not only did very little time occur but the mother took active steps to keep the children away from the father.
The mother moved [X] to a different [sport] club without telling the father. She denied that she did this because at the time of separation the father was the coach of [X]’s team but I do not accept her denial.
The mother removed the children from a [sport] lesson in September 2009 when she discovered that the father was there to watch the lesson and she never took them back to that class. She denied that she did this to distance the children from the father but I do not accept her denial.
When the mother found out that the father was spending time with [Z] at school at lunchtime she complained to the school and the time stopped.
The father had telephone communication with the children but he alleged and I accept that the children progressively became ruder and ruder to him, rudeness which he could hear the mother encouraging in the background.
In February 2010 the mother filed an application for a property settlement in the Family Court at Newcastle. The father filed a response seeking alternative property orders but he did not at that stage seek any parenting orders. However correspondence tendered at the hearing showed that on a number of occasions during 2010 the father’s solicitors wrote to the mother’s solicitors proposing that mediation occur and that time commence. The mother’s solicitors either failed to respond or rejected the proposals.
In March 2010 the mother sent a letter to the Department of Education requesting that the father be removed as “parent 2” on the enrolment details for [X] and [Z] and be relegated to “other parent.”[7] She also demanded that the children’s schools ensure that she was the first point of contact in regard to the children followed by her parents as the emergency contacts.[8]
[7] The father was in fact until that point “Parent 1” on [Z]’s enrolment form
[8] At that time [Y] was attending a Catholic School while [Z] and [X] were both attending a state school
The mother said that she was making these requests:
…due to concerns I have for my children’s safety and the school contacting Mr Turner in the first instance last Wednesday….when [Z] was sick. The school then rang my parents which is fine however I was not contacted at all.[9]
[9] Exhibit H
In June 2010 the property proceedings were transferred to the Federal Magistrates Court.
In September 2010 a hearing finally took place in the Local Court at [T] in respect of the mother’s application for an ADVO. The Magistrate made the order but the father appealed to the District Court and his appeal was upheld on 2 November 2010.
An unsuccessful conciliation conference occurred in relation to the property matter in November 2010.
On 8 November 2010 the father filed an amended response in which he sought parenting orders and on 26 November 2010 the mother filed a reply. She proposed that she and the father have equal shared parental responsibility for the children, that she be permitted to relocate to Queensland and notwithstanding the fact that the father had had no meaningful contact with the children for over a year she proposed that provided that the father did an anger management course, a parenting course and a parenting after separation course he could spend time with the children during the school holidays and from Friday until Sunday at the end of week 5 of each school term.
Despite the contents of this reply however the children continued to spend no time whatsoever with the father and on 3 December 2010 the mother wrote a letter to [Y]’s school advising them that she had “genuine safety concerns for her children.” She instructed the school that under no circumstances was [Y] to be removed from the school without her permission and she also said as follows:
There are no consent orders in place however we are currently dealing with the Family Court in Newcastle who have made findings that if Mr Turner wishes to see his three children he needs to contact the [T] Children’s Contact Centre and arrange supervised access visits.[10]
This was untruthful.
[10] Exhibit F
In February 2011 the matter took another twist when the father was charged with sexually assaulting and drugging the mother, an offence alleged to have occurred on 15 June 2009. At about the same time he was served with another application by the mother for an ADVO.
The father pleaded not guilty to the criminal charges and instructed his solicitors to contest the ADVO application. The mother did not attend court on the mention date of the ADVO application and it was dismissed.
While the criminal charges were still pending a Family Report was ordered and Ms T conducted interviews in July 2011. By this stage the children had spent virtually no time with the father for two years and Ms T found them strongly opposed to the idea of resuming a relationship with him. She considered however that it was too early to give up all hope of the relationship being repaired and she made suggestions about a way forward.
On 9 December 2011 after a 5 day jury trial in the [T] District Court the father was acquitted of the criminal charges and on 21 December 2011 interim orders were made by consent in this court in line with
Ms T’s recommendations.
It was ordered that the father and [X] engage in child-inclusive therapy to be conducted by a psychologist Ms C to see if the father’s relationship with [X] could be repaired and that [Y] and [Z] spend supervised time with the father at [T] Children’s Contact Centre.
The father expressed concern about the proposal to use the Contact Centre because he felt that it had ties with the mother’s employer, [omitted], but there is no other children’s contact centre in the [omitted] area and no other option was available.
The mother cancelled two appointments with Ms C for [X] to attend an intake interview before taking him to a third, but she insisted on remaining with [X] while he spoke to Ms C and Ms C noted that when [X] told her negative things about the father the mother was observed to smile.
The mother said that this must have been a nervous response and was not an indication that she took pleasure in hearing [X] criticise the father. I do not accept this evidence.
At the end of the session Ms C asked [X] if he would like to come back for another session by himself instead of being accompanied by his mother. [X] said that he would not and several days later he left a phone message for Ms C saying that he did not wish to attend further counselling.
After a considerable delay the mother finally made arrangements to take [Y] and [Z] to [T] Children’s Contact Centre. No time with the father occurred however and the Contact Centre notes record what happened as follows. It is reasonable to assume that “CW” in the extract below means “Childcare Worker” or something similar and that “R” and “A” are the workers initials.
Children were waiting with Mum Ms Turner and Aunty Ms K. CW(R) directed them to wait in the seating area until it was time to commence the contact. CW(R) and CW(A) both walked out to meet the family at 3.10pm. CW(R) had a seat next to [Y] and asked the children “how are you feeling today?” Both children replied with “sick”. CW(R) continued to say “I need to ask you a couple of questions if that’s ok. I need to know if you want to see dad today?” Both children said “no”. CW(R) then asked “I need to ask you if you want to see dad at all, from today onwards.” Both children shook their heads and said “no”. CW(R) then said “So at this stage we are going to terminate all further contacts and the next step from that is [names omitted] will write a letter to each Solicitor and then go from there.”
Ms Turner nodded to CW (R)’s statement.
CW(R) asked the children if they had any questions about what she had just said. Both children shook their head and said “no.” CW(R) said “you can ask me any question you like.”
Ms K said to the children, “If you want we can give you some privacy and we can go outside.”
CW(R) told the family “Well you can go home if you like, I will walk you out”
Upon departure Ms Turner said “Thanks very much guys.” She smiled.
At the next mention date of the matter a second family report was ordered and interviews for that report occurred in July 2012. Ms T found the children if anything even more hostile to the father than before. She expressed the view that the mother had aligned the children with herself but said that in her opinion that there was no way in which the damage could be undone and the father’s relationship with the children restored.
The father was not willing to accept such a bleak outcome and the parenting matter together with the still unresolved property matter was listed for hearing commencing on 4 February 2013.
It emerged during the interviews for the second Family Report that the mother had told the children that the father had only got off the criminal charges because one juror disbelieved the mother.
The parties’ current circumstances
The mother lives with the children in rented accommodation in [T]. She is employed by [omitted] as a [omitted] and she has not re-partnered.
The mother has extended family in [T] including her parents, siblings and nieces and nephews. She is no longer seeking to relocate to Queensland.
The children each attend a different school. [X] attends [C] School, [Y] [M] College and [Z] [S] School.
The mother said that [Z] was not doing brilliantly academically and that she was considering enrolling her at [C] School, an option she was also considering for [Y].
[X] plays [sports omitted] and [Y] plays [omitted].
The father lives in the Property K property and is working as a [omitted]. He also has not re-partnered.
The father has extended family in [T] including his parents, sister, brother and nieces and nephews. He would like to keep the Property K property if possible but he did not suggest that he would leave [T] if he was unable to do so.
The children’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s.60CC(2) and (3) of the Family Law Act (as they stood prior to the amendments on 7 June 2012) set out the matters to which I must have regard in order to determine the children’s best interests.
My normal practice is to deal with the primary considerations in s.60CC(2) first and then make findings about the additional considerations in s.60CC(3). However on occasions it is very difficult to make findings about the s.60CC(2) considerations before findings are made about the s.60CC(3) considerations, and this is the case here. The Full Court has confirmed that it is acceptable to deal with subsections in reverse order and that is how I intend to proceed. [11]
[11] Collu & Rinaldo[2010] FamCAFC 53
The first additional consideration is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
The children expressed very clear views to Ms T about spending time with the father.
In 2011 [X] told Ms T that he wanted to “stay with Mum and not really see Dad at all.”[12] [Y] said that he “did not want to spend any time with the father in future”[13] and [Z] said that she did not want to spend any time with the father.[14]
[12] Family Report released 4 August 2011 paragraph 79
[13] Family Report released 4 August 2011 paragraph 91
[14] Family Report released 4 August 2011 paragraph 104
Ms T felt that it was too soon to give up on the children having a relationship with the father simply based on their views and she recommended steps that could be taken to try to restore the relationship.
Consent orders were made on 21 December 2011 in line with Ms T’s recommendations but to no avail and in 2012 [X] told Ms T that he never wanted to see the father again, [Y] said that he wanted no relationship with the father and [Z] said that she never wanted to see the father again.[15]
[15] Family Report released 22 August 2012 paragraphs 67, 76, 87
The children’s views are clear but I cannot determine what weight should be given to their views until I make further findings.
The next additional consideration is the nature of the relationship of the children with each of their parents and any other persons including any grandparents or other relative of the children.
The children have a close relationship with their mother indeed they see her as “all good.” Whether their relationship with her is healthy however is open to question.
The mother said that the children had a close relationship with the maternal grandparents and other members of the maternal family and this was not challenged by the father.
The children are hostile to the father and have no relationship with him.
It would be useful to have some idea of what the father’s relationship with the children was like prior to separation but it is impossible to get a clear idea about this. The mother told Ms T that the relationship was poor and stories recounted by [X] and [Y] to Ms T would seem to support this but the mother was not a witness of credit and there is considerable risk that the children’s views have been contaminated in the long post separation period.
The following matters strongly suggest that something other than simply the children’s own past experiences have led to their rejection of the father:
·the incident during which [X] was left on the side of road by the father, which the mother put forward as one of the reasons for his rejection of his father, happened before the parties’ 2008 separation and the mother said in her affidavit that she reconciled with the father in 2008 because [X] did not want the family broken up and “wanted to live with both of us.”
·The mother commented during cross-examination that at this stage [X] “loved his Dad” and wanted to live as a family unit.
·the mother did not suggest that [X] or [Y] expressed any unhappiness about the (admittedly limited) time they spent with the father after separation or that they were subjected to any questionable treatment by him during that time.
·[Z] did not report to Ms T during the first report interviews that she had ever been subjected to any ill treatment by the father at whatsoever nor did the mother allege that this had occurred.
·Ms T referred in her report to an entry in the records of the Department of Human Services dated 7 February 2008 where it is recorded that “the mother is not concerned in regard to the father minding the children he is doing so today.”[16]
·The father’s evidence about [Z] running up to him and hugging him when he went to the school immediately after separation was credible and was consistent with the fact that there was no evidence that [Z] had ever been harshly disciplined by the father and that the mother made no negative comments about [Z]’s pre-separation relationship with the father.
[16] Family report released 4 August 2011 paragraph 26
Ms T’s view in 2011, amply supported by her observations, was that [X] and [Y] were angry with the father rather than fearful of him, and she noted that while part of their anger was expressed to be over issues of inappropriate discipline prior to separation part was expressed to be over his failure to give them birthday and Christmas presents post-separation and in [Y]’s case his failure to attend his Eisteddfod performances.
Ms T reported in 2011 that [Z]
… was taking her cues from [X] and [Y] in regard to how she responded to the father.[17]
[17] Family Report released 4 August 2011 paragraph 103
Ms T again observed in 2012 that all three children were hostile to the father but showed no fear of him.
It was not suggested to Ms T in cross-examination that her record of what she observed on either occasion was inaccurate nor was she challenged about the validity of her conclusions and I place weight on this evidence.
The children have no relationship with the paternal family who have not tried to keep in contact with them since the parents separated.
I must have regard to the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
The mother has gone to quite extraordinary lengths since separation to prevent the children spending time with the father, to instil in them a belief that the father is a person who should be avoided and to keep control of their views. She:
i)moved [X] to a different [sport] club so that he no longer played in a team coached by the father;
ii)removed the children from a [sport] lesson after finding that the father had come to watch the lesson and never took them back to that instructor;
iii)demanded that [Z]’s school stop the father spending time with [Z] at lunch time;
iv)raised concerns about [Y]’s safety in the father’s care with [Y]’s school and untruthfully told the school that the Family Court had suggested that the children should only see the father at a contact centre;
v)failed to answer letters from the father’s solicitors about arranging time or attending mediation;
vi)unilaterally engaged the children in counselling with Ms R, a psychologist employed by [omitted] who are also the mother’s employer;
vii)took [Y] for a session with Ms R the day before the children were due to meet the Independent Children’s Lawyer for the first time in April 2011;
viii)took [Y] for a session with Ms R on 4 May 2011 during which he was “invited to draw a picture of the day [with the Independent Children’s Lawyer]” and was questioned about what he had told the Independent Children’s Lawyer.
Ms R’s notes of the session are headed “review and update to [letter omitted] re court appointed consultant visit”;
ix)informed the children after the father’s acquittal on 9 December 2011 that the father was guilty and had only been acquitted because one juror did not believe the mother’s story.
x)took considerable time to arrange an appointment for [X] to see Ms C following the orders of 21 December 2011 and cancelled two appointments before attending a third;
xi)remained with [X] throughout his interview with Ms C and smiled when [X] relayed negative information about the father;
xii)took considerable time to arrange for [Y] and [Z] to attend at the [T] Children’s Contact Centre and offered no encouragement to the children to see their father;
xiii)misrepresented part of the first Family Report to [X] before he attended the interviews for the second Family Report;
xiv)had [X] ring the Independent Children’s Lawyer after the second family report interviews to complain that the children had been required to see the father;
xv)took all three children to a General Practitioner after the interviews for the second family report claiming that they were suffering distress and following which they were placed on mental health plans;
Ms T said that when she told the children part way through the second report interviews that she wanted to observe them with the father the maternal grandmother said in front of the children “Oh the poor little children.” The mother then made an excuse to leave Ms T’s rooms with the children and it now appears that she may have rung her solicitor while absent to protest about the fact that Ms T intended to bring the children into the presence of the father.[18]
[18] Annexure E to the mother’s affidavit
The mother returned after about 10 minutes and an observation session then took place.
In the face of all of this evidence it is absurd for the mother to suggest that she is content for the children to see the father if they wish.
During cross-examination the mother said that as far as she was concerned the father could attend the children’s sporting fixtures if he wanted and during final submissions her counsel urged me to make a notation to the orders to this effect. However the mother was evasive when asked whether the father could attend the fixtures even if the children did not wish it and she has a history of taking action to prevent the father seeing the children at such places. I do not accept that the mother would meekly permit this to occur.
The mother said during cross-examination that at Christmas 2012 she said to the children “Its Christmas, how about we ring your Dad for Christmas?” and the children said no.
How could the children have said yes? There was no evidence that the mother had changed the stance identified by Ms T in the August 2012 report and had given the children the freedom to choose whether to have a relationship with the father or not. These were empty words by the mother which met with a predictable (and possibly satisfying for the mother) response.
The mother’s counsel submitted that a letter sent by the mother’s solicitors to the father’s solicitors on 6 September 2012 was evidence that the mother was not being blindly obstructive but was trying to find a way forward. The letter contains a proposal that the mother and father engage in therapeutic counselling and goes on to say:
Our client is desirous of setting the following objectives:
Acquiring (sic) into how the parties may acquire insight into the effects of exposing their children to conflict and the continuing problems this may cause if the children are exposed to continued conflict and
To try and resolve some differences between them in that they may discuss their personal objectives for the care, welfare and development of [X], [Y] & [Z].
The father declined to accept the proposal.
The mother’s counsel showed Ms T the letter and asked her whether in her opinion it showed that the mother was trying to do something positive about the situation and Ms T said that she considered that it did. I do not share this view. It is difficult to make sense of the proposal in the letter, and the only things which are clear are that if therapeutic counselling occurs the mother intends to control the agenda and that the issue of the children resuming spending time with the father is not on the agenda.
Not only does the mother have no willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father she has taken active steps since separation to prevent the children having a relationship with him and to cause the children to dislike him and to demonise him in their eyes.
It is abundantly clear from all of the evidence and from the mother’s presentation during the hearing that there is no likelihood that she will ever reconsider her position or behave differently in the future.
The father’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother was not the focus of inquiry or submissions at the hearing.
The father dislikes the mother and the evidence suggests that he has reached the point where he is unable to prevent himself from making negative comments about her if the opportunity arises, but he has never said or done anything which suggests that he would like to obliterate her from the children’s lives.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of any separation from a parent or any other children or other person with whom he or she has been living.
The mother did not propose any change to the children’s circumstances.
The father proposed in the alternative two significant changes, one that the children live with him and the other that the children spend defined time with him.
Ms T said that she considered that [X] and [Y] were beyond the age where a change of residence was likely to lead to a change in their attitude and in any event they were both old enough to simply decamp to the mother’s home or physically resist going with the father.
Ms T’s opinion was that even if some means could be found to force the children into the father’s company their behaviour initially would very likely “try the patience of a saint.” In oral evidence Ms T expressed a concern that the father might snap if faced with sustained rudeness and insolence from the children and in her report she said as follows:
Unfortunately the father is assessed as not having the required high level of insight, tolerance and maturity to manage the children's criticism of him and anger with him if they spent unsupervised time with him or lived with him. With the father's past history of punitive physical disciplining of the children and [X] and [Y]'s ages it is a real risk that the father would in frustration and anger resort to being inappropriately physical with the children if they were in his care and began to goad him, criticise him or uphold the mother's views and attitudes of him.[19]
[19] Family Report released 14 August 2013 paragraph 127
Ms T maintained this view during cross-examination. Her opinions are soundly based on her observations and on a view of the evidence which I share and her opinion therefore needs to be given considerable weight.
Ms T did not support the idea of an order being made for defined time if there was no change of residence, again no doubt because of the near-impossibility of ensuring that [X] and [Y] attended as ordered and the risk of an incident occurring as a result of insolent behaviour by the children.
During cross-examination I asked Ms T if something could be tried which would allow the father to collect the children without the mother having a chance to interfere and which would also manage the risk of an incident occurring because of bad behaviour by the children, for example the father picking the children up from school and another adult being present during the father’s time with the children, not to supervise exactly but to act as a circuit breaker if the father became frustrated with the children’s behaviour.
Ms T did not support such a proposal given the ages of [X] and [Y] in particular and it is easy to see the difficulties which could arise if [X] and [Y] refused to go with the father.
[Z] is younger than the boys and the history between [Z] and the father is different and these two factors mean that there would be better prospects of [Z]’s relationship with the father being restored if appropriate measures were taken to bring father and child together. However Ms T did not support the idea of the siblings being treated differently. She pointed out, and this makes abundant common sense, that it would be psychologically untenable for [Z] to maintain a positive view of the father while continuing to live in a household where all the other people in it reviled the father.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is not a relevant matter in this case.
I must consider the capacity of each of the children’s parents and any other person to provide for the needs of the children, including their emotional and intellectual needs.
The mother is meeting the children’s day to day and intellectual needs at present.
The father said that during the relationship the mother had a habit of yelling at the children (and him). He said that he had once recorded on his phone the mother yelling and calling the children (and him) vile names but the mother found out about it and wiped the recording.
The father also alleged that the mother had strapped and hit the children and that in 2008 he had come upon her several times smacking the boys on the back of the head.
In support of his case that the mother was prone to lose control and yell at the children the father relied on the affidavit of his niece Ms B. Ms B said that on 7 occasions she had seen the mother very cranky and snapping at either the children or the father and she gave evidence about the mother yelling at her and uttering threats in an attempt to gain entry to the Property K property in the father’s absence in January 2010.
Ms B’ evidence was unchallenged but her evidence about the mother’s behaviour to the children and the father was far too general to be of much use and I cannot use the evidence about an incident between adults after separation to support an adverse conclusion about the mother’s treatment of the children.
The mother admitted that she had yelled at the children on occasions during the relationship but denied that it was anything out of the ordinary and she denied inflicting any harsh physical punishment on them.
The mother was not a witness of credit and her denials do not carry much weight, but there was no evidence to support a finding that the mother had habitually harshly disciplined or excessively yelled at the children or that there was any ongoing problem in that regard.
Since separation the mother has gone to extraordinary lengths to prevent the children having a relationship with the father and absent a finding that this was necessary to protect the children from harm this shows a marked lack of capacity to provide for the children’s emotional needs and indeed constitutes emotional abuse of the children.
The father said that he was involved in the children’s day to day care and sporting and extra-curricular activities prior to separation. The mother was dismissive of any suggestion that he had such involvement but she was not a witness of credit and the unchallenged evidence of the father’s friend Mr B provides some limited corroboration of the father’s claim.
What matters most now however is not the extent of the father’s caring role with the children prior to separation but the extent if any to which he harshly or abusively disciplined or unfeelingly treated them prior to separation.
In her trial affidavit the mother alleged that:
·the father was rude and abusive to [X] at [omitted] matches between 2007 and 2009 and on one occasion was rude and abusive to another parent.
·the father hurt [Y]’s feelings by rejecting his Father’s Day gift of a bookmark, telling [Y] he did not read.
·on an occasion in about 2007 when [X] was misbehaving the father drove [X] to a remote place and left him alone on the side of the road for a lengthy period of time.
·on an occasion prior to separation when the she left [X] and [Y] with the father overnight while she attended a social engagement [X] complained when she got home that the father had locked the children in the cool room and would not let them out for hours/all night. The cool room was a 2 x 2 by 1 ½ metre freezing unit which the father used when he had the [business omitted].
The mother said in her trial affidavit that she asked the father about [X]’s claim regarding the cool room at the time and he denied that it had happened.
The mother told Ms T that the father had punched and kicked the children when they answered him back but later amended this to say that only [X] was punched and only a couple of times and that the father did not kick the children as such but would nudge them with his foot if cross and wanting their attention.
She did not repeat any of these claims in her trial affidavit when she was required to swear to the truth of her evidence.
[X] told Ms T during the interviews for the first family report that the father had hit him in the ribs with his fist and grabbed him around ears and lifted him up. He claimed that the father used to flick the children’s ears when they got their homework wrong and if they retreated to their room strike them when they were lying on the bed. [X] also alleged that the father had used a belt on him and [Y] when they were 7 or 8 and he repeated the allegation that he had been locked in the cool room.
The mother’s evidence about the alleged coolroom incident was particularly unsatisfactory. The stories she told about when she first heard about it, which children were involved and how long the child or children were allegedly locked in the coolroom shifted over time. There was a strong flavour in the mother’s evidence about this issue of it either being fabricated at worst or embellished over time at best.
The father denied that anything of this kind ever occurred at all and I am satisfied that his denial should be accepted, especially given that he made admissions (minimising the harm as may be) about other matters such as leaving [X] on the side of the road.
The father admitted to Ms T that he had used a belt on [X] and had pulled his ears as a disciplinary measure but said that these things had only happened occasionally. He told Ms T that there were times when the mother would ask him to strap [X] and he would refuse. During cross-examination he said that he had strapped [Y] twice and [X] once. He denied that he had been verbally abusive to [X] at [omitted] matches and denied the allegation that he had been rude to another parent.
The father denied that he ever punched [X] and in the light of his other admissions and the mother’s failure to repeat these allegations in her trial affidavit I accept his denial.
The father admitted making the comment to [Y] about the bookmark, and he agreed that he had left [X] on the side of the road. He said that it happened after [X] had punched his brother and that he left [X] alone for only 15 minutes and waited around a corner. The father alleged that the mother had urged him to take this action and he said he regretted it.
The father had a propensity to minimise his culpability and I am inclined to the view that he may have understated the extent of what happened on this occasion.
During the first family report interviews the father apologised to [X] for having pulled his ears and hit him with a belt. He told [X] that he did get angry a lot and that it was a lot to do with Mum and a lot to do with the pain. He admitted having slapped [X] on the back of the leg.
It is difficult to be certain now about whether the father was habitually harsh to [X] and [Y] or whether some isolated incidents are being taken out of proportion.
The father had a propensity to minimise his culpability and I incline to the view that he may have understated the extent of what happened on this occasion. Ms T felt that the father’s harsh treatment of [X] and [Y] might have been more extensive than the father was now prepared to admit, commenting that:
The father may well have suffered a level of depression and frustration in regard to his back and then shoulder injuries. Chronic pain can lead to low level tolerance and inappropriate/abusive parenting.
Nowhere did Ms T suggest however nor did the mother’s counsel ask her to accept that the fact that harsh treatment may have occurred to a much greater extent than the father was now prepared to admit warranted the father spending no time with the children at all, and she made suggestions in her first report about how any risk to the children which did exist as a result of deficiencies in the father’s parenting practices could be managed, for example the father doing counselling and a parenting course.
The mother raised two other concerns about the father namely her beliefs about his cannabis use and alcohol consumption.
The father was convicted of cultivating cannabis in 1987 and possessing cannabis in 1992. He admitted using cannabis between 1996 and 1999 for pain relief and using it socially on occasions during the relationship and he agreed that the mother was most unhappy about his cannabis use. He claimed however that he had last used cannabis socially in 2007.
The father did a drug test at the request of the mother in 2008 when the parties were separated and he also did drug tests on many occasions during the course of these proceedings and at no time did he test positive for the use of illicit drugs.
However the father did an employer test in 2010 which was positive for cannabis use in a very small amount. He said that this must have been because he passively inhaled cannabis.
I have some reservations about this explanation but in the light of the evidence as a whole it is not open to me to find that the father continues to use cannabis.
The mother alleged that during the relationship the father sometimes used alcohol problematically. The father denied that his use of alcohol was problematic and said that he drank on Friday and Saturday.
The mother made a general allegation and did not provide any detail. The evidence does not permit me to make a finding that the father used alcohol problematically during the relationship or might do so in the future.
A concerning piece of evidence about the father’s alcohol use was that in July 2012 he was charged with low range PCA. His reading just over .5 and he was released on a bond and did not lose his licence.
It is not open to me to find however that the father has an alcohol problem which impacts on his parenting capacity.
There are limitations to the father’s capacity to provide for the children’s emotional needs. He told Ms T during the first report interviews that he would return [X]’s skim board to him but he did not do so, adding another log to the bonfire of [X]’s resentment, and his answer in cross-examination that he did not do so because he thought [X] had another one rings hollow.
The father has not sent the children any cards or birthday or Christmas presents since separation save that he said that he gave [Y] a card with money in it at school on one occasion. His excuse at the family report interviews for not having done so was that he did not have sufficient money. This also rings hollow given that during 2010 he had considerable cash available to him and it beggars belief that it was beyond his means to buy the odd birthday card or modest gift once he returned to work in 2011.
Ms T said as follows however and it makes sense:
Often the rejected parent becomes immobilised by the severe rejection of the children and ceases to attempt to foster the relationship and stops telephoning or sending cards and gifts. Aligned children pounce on this as further evidence that the rejected parent does not love them and care for them and cannot be bothered doing anything positive or nice for the child. This is often demonstrated by a child's reported ambivalence toward the rejected parent and was seen in the children in this matter. Both [X] and [Y] criticised the father for not coming to their sporting activities but when asked by this writer if they would have liked the father to attend they both firmly said they would not. They were unable to appreciate the "no win" situation they had placed the father in regard to this issue. It would seem that the father has ceased attempting contact with the children even by way of presents and cards.
I must have regard to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.
The ages of the children are relevant. Ms T’s opinion was that changing residence to deal with the issue of alignment was fraught with difficulty and risk of harm for older children. During cross-examination she gave a detailed and persuasive exposition of why this was the case and I am satisfied that this opinion should be given weight.
I must have regard to the attitude to the children and to the responsibilities of parenthood demonstrated by each of the parents.
The mother has actively prevented the children spending time with the father since separation and has usurped to herself the right to make major long term decisions about them, including decisions about engaging them in counselling and about changing [X]’s school.
The mother’s actions cannot be justified by any lack of interest shown by the father or by the findings I have made about the father’s parenting capacity. I have yet to make findings about the family violence allegations but unless something emerges there then the mother’s actions demonstrate a poor attitude to the children and the responsibilities of parenthood.
The father has paid child support since separation but during some periods has paid little and during others has failed to pay the full assessed amount. However I am not convinced that this necessarily reflects on his attitude to the children or the responsibilities of parenthood; it is just as likely to have been the result of his financial situation from time to time.
The mother’s counsel submitted that the father showed a poor attitude to the children by rejecting the proposal contained in the letter dated 6 September 2012. I do not accept this submission. I accept the father’s evidence that he declined to accept the proposal on medical advice, although I would also not have made an adverse finding against him in the absence of medical evidence given the contents of the letter.
I must have regard to any family violence involving the children or a member of the children’s family.
In her trial affidavit the mother gave evidence about three specific incidents which occurred in the early years of the relationship which she considered involved family violence. Two of those incidents however very clearly did not involve anything of the kind.
The father’s conduct at [omitted] in 1994 did not involve conduct coming within any definition of family violence that I know of and the same can be said of his behaviour during the incident which the mother described at considerable length where she chose to walk home from a party because she disapproved of the cannabis smoking which was taking place.
Sandwiched between evidence about these two incidents however the mother gave evidence of an event which occurred when the parties were living in Sydney in about 1994 which did involve family violence.
The mother alleged that she and father had an argument and the father tore off her nighty, dragged her downstairs and tied her to the clothesline and hosed her down. She said that the father then left and she managed to free herself but she was unable to immediately get back inside the [building] and was left naked outside for hours until she finally gained admittance. The mother said that she locked herself in a room and felt fearful for her safety.
The father’s version of events was that he reacted badly after catching the mother seeing another man off the premises and that he picked up a hose and hosed her.
The mother was not a witness of credit and I cannot be satisfied on the balance of probabilities that this event happened exactly as she described it, but the father had a tendency to minimise the seriousness of his conduct and even on the father’s version of events he subjected the mother to a degrading incident which it is reasonable to find caused her to fear for her safety and well being.
The next violent incident the mother referred to in her trial affidavit occurred in 2008. The mother alleged that in February 2008 the father pushed her and grabbed by the throat and dragged her to the bedroom, threw her on the bed and threatened to head butt her.
The mother reported this incident to the police and the father was charged with common assault. On 12 August 2008 he pleaded guilty and was placed on a 12 month good behaviour bond.
The father denied to Ms T and in the witness box that he grabbed the mother by the throat but according to records from his GP he admitted this to his GP in 2008 and I am satisfied that the father minimised at trial what occurred during the 2008 assault.
During the first family report interviews Ms T commented to the mother that there had been two instances of family violence 10 years apart and the mother said that these were the two instances that stood out and that there had been others. When asked for details she alleged that the father:
always slapped me across the face, he would punch me in the kidneys and push me when we were arguing.
The mother also alleged to Ms T that the father head butted her when [X] about a year old which would have been in about 1999. She said that she reported this incident to the police but did not press charges. The father denied that this had occurred. No police records were tendered and in this absence I am not prepared to make a finding that this event occurred given the problems with the mother’s credit.
The troubling thing about these additional allegations is not just that they emerged for the first time when the mother was pressed by Ms T but that the mother did not repeat them in the lengthy trial affidavit she filed on 30 January 2013 when she was required to swear to the truth of her evidence.
The most troubling aspect of the mother’s case about family violence however was that she alleged in her trial affidavit that the father sexually assaulted and drugged her on 15 June 2009 but provided not a shred of detail about what was supposed to have occurred.
If the mother had provided evidence about this incident it would have been relevant and important. The father was acquitted of the criminal charges but this court does not conduct a hearing to decide if statutory charges are made out, it looks at things from quite a different angle and it applies a different standard of proof.
The Solicitor Advocate for the Independent Children’s Lawyer requested that the District Court file be produced to this court and she requested leave during the hearing to inspect it. I refused to grant that leave. The only purpose for seeking it would have been to obtain information for use in cross-examination and possibly to obtain documents with a view to tendering them. It would have been fundamentally unfair to the father and the father’s counsel to allow information in the District Court file to be used in this way when the mother chose to give no evidence about the alleged incident in her trial affidavit.
The mother’s failure to give evidence about this alleged incident causes me to seriously question whether she chose not to do so because she knew that the evidence would not withstand scrutiny.
The mother’s credit is called seriously into question by the fact that she has presented this damaging allegation to the children as fact and yet failed to put it up for scrutiny by this court.
Putting the best possible spin on the situation it might be that the mother’s failure to give any evidence about the alleged incident was due to an error of judgment by her solicitors, but this failure, together with the allegations by the mother that certain behaviours were “domestic violence” when they clearly were not and her failure to repeat in her trial affidavit allegations about violence made to Ms T eighteen months earlier, lead me to seriously question whether the mother might not be using smoke and mirrors to try to create an image of the father as a person far worse than he really is.
There was certainly not a shred of evidence to support a finding that the father was a domestic tyrant who used violence or threats of violence to control his family, and he claimed that the mother shared part of the blame for any violence that occurred during the relationship. He said that there was some mutual pushing and shoving and he alleged that the mother was verbally abusive and physically aggressive to him during the relationship. He said that on in 1993 she chased him in a car and ran over his foot and told Ms T that on one occasion she threatened him with a knife. These latter allegations were not repeated in his trial affidavit however.
The mother denied the father’s allegations and it is impossible for me to be satisfied on the balance of probabilities that the mother was violent to the father as alleged save that I am certainly inclined to accept that just as there was arguing there was also mutual pushing and shoving.
Nobody sought to bring the mother to account for her behaviour such as it was and it could not be said that the father accepts any great responsibility for his behaviour including the assault on the mother in 2008. He attended an anger management course in 2008 because the mother required him to do so before she would agree to reconciliation but he said that he did not accept that he had an anger management problem and attended to help him learn to cope with the mother’s anger.
In summary I am satisfied that the father committed two acts of family violence and together with the mother was involved in some pushing and shoving during the relationship and I am satisfied that the father accepts minimum responsibility for his actions, but the next difficulty is that the mother failed to explain what she wanted me to do with any findings I might make about family violence.
In some cases a parent’s experience of violence is used to explain and justify the hostility they exhibit to the other parent, but although I am convinced that the mother is hostile to the father she did not admit to this.
The mother did not claim that she feared the father or that because of his assault on her in 2008 or because of her belief that she was drugged and sexually assaulted on 15 June 2009 the idea of the children spending time with him was repugnant or unbearable to her.
The mother told Ms T that the children had seen the father pushing her and that [Z] had seen the assault in 2008 but she did not suggest in her trial affidavit that this had occurred, indeed the furthest she went on oath was to say that the children had witnessed she and the father arguing.[20] There was no evidence that the children had rejected the father because of their personal experiences of his treatment of the mother.
[20] Mother’s affidavit paragraph 127
Ms T observed no fear of the father in the children and no anxious desire to please him and avoid his wrath.
In the early days after separation the mother made claims to schools that the father posed a risk to the children and when asked about it during cross-examination she claimed that this was still her view but she nevertheless repeatedly insisted during the hearing that the children (including [Z] aged 9) could spend time with the father if they wished. She refused to acknowledge that this undermined her claim that she believed that the children might be unsafe with the father.
The mother did not openly suggest that the acts of violence committed by the father and his minimisation of his culpability for those acts made him a poor role model for the children. She repeatedly told Ms T during the second family report interviews that she wanted the children to have a healthy relationship with the father and I could speculate that the sub-text of this and indeed of the 6 September 2012 letter was that the mother was unwilling to facilitate an encourage the children’s relationship with the father unless he made admissions to her satisfaction about his behaviour and committed to change and perhaps apologised to her, but this is speculation on my part. The mother never clearly came out and said anything of the kind.
Finally the mother’s counsel did not suggest to Ms T that the violence which had occurred or anything in the father’s attitude in this regard meant that he should be forever barred from having a relationship with his children.
The family violence allegations, like the allegation of the father’s cannabis use and alcohol use, were just left hanging there in the mother’s case.
The fact that the situation is not always black and white where violence is concerned was highlighted by evidence given by the father. In his affidavit he said as follows:
My father left my family home when I was 5 years old and he left me with a bruise the shape of his hand on the side of my face. I did not want him to leave our family so I held his leg and he slapped me. I promised myself that I would never leave my children and I would always do my best to have a meaningful relationship with them. The Applicant knows that my father walked out on me and she is doing this to hurt me.[21]
[21] Father’s affidavit paragraph 94
I asked the father whether he would have liked a father in his life despite what happened and the father, a laconic witness, replied:
It would have been handy at times yes.
The father said that when he was 18 he and his sister paid a private detective to help them find their father. They did find him but nothing came of it and the father commented that:
He had a new family. I didn’t feel the connection.
There are no family violence orders.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The order least likely to lead to further proceedings is an order that the children live with the mother and spend no time with the father or alternatively spend time with him in accordance with their wishes. I doubt the father will fight on after such orders are made.
I must consider any other relevant fact or circumstance
As a result of my findings in relation to the s.60CC(3) matters I am comfortably satisfied that the children’s total rejection of their father has come about as a result of a sustained campaign by the mother.
I do not accept that anything raised by the mother about family violence or the father’s behaviour toward the children prior to separation justifies her behaviour in obstructing the children having a relationship with the father and shaping their views about him to match her own or by itself explains the children’s attitude to the father.
The following conclusions by Ms T are strongly supported by the evidence:
From the interviews and the observations for both family reports and from the contents of the subpoenaed material it would appear that even though there is a degree of realistic estrangement of [X] and [Y] from the father as a result of his past punitive parenting style all three children present as strongly aligned children. They are currently strongly aligned with the mother and are firmly rejecting of the father. This degree of alignment can only occur when a parent actively aligns the children against the other parent.
On the extreme end of the continuum children cannot identify anything positive about the rejected parent currently or historically, often demonize the parent and members of their extended family and demonstrate a complete and utter rejection of and refusal to have anything to do with the rejected parent. Unfortunately all three children appear now to be at the extreme end of the continuum.
I now turn to the primary considerations in s.60CC(2) which are:
i)the benefit to the children of having a meaningful relationship with both of the children’s parents; and
ii)the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
Most children benefit from having a relationship with both of their parents. This is recognised in s.60B of the Family Law Act which sets out the objectives and principles underlying the parenting section of the Act. S.60B(2)(a) and (b) provides among other things as follows:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)
The benefit to the children of having a meaningful relationship with the father as well as the mother in this case is not just theoretical. The father has skills and interests which he could share with the children. He is half of their genetic make up.
If I make the orders sought by the mother the children will have no relationship with the father, and they will have no relationship with him not as a result of their own judgment of him post separation but as a result of being aligned by the mother to conform with her views and wishes.
The orders sought by the father would, if the children did not run away, place them in proximity of the father, a pre-condition for a meaningful relationship to be re-established. However if the children were resentful and angry about being forced to live with or spend time with the father and acted out then not only would no meaningful relationship ensue but an unfortunate incident for the children could occur because while I do not consider that the father would be like to harshly deal with the children now unless goaded beyond the limits of endurance by the children behaving like brats, if they did behave like brats the consequences could be dire.
The mother has subjected the children to emotional abuse by orchestrating their rejection of their father and is likely to continue to do so but this kind of abuse is not encompassed in the definition of abuse in the Family Law Act. There was no evidence that the children were likely to be exposed to abuse as it is defined or to neglect or family violence in the mother’s care.
Parental Responsibility
Pursuant to s.61DA of the Family Law Act I am obliged to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them absent a finding that there are reasonable grounds to believe that one of the parents has engaged in abuse of the children or family violence.
The father committed acts of family violence on two occasions in the past and the presumption does not apply.
It is still open to me to make an order for equal shared parental responsibility if I consider that to be in the children’s best interests. But the parents have no relationship and no capacity to communicate. They are hostile to each other and unwilling to speak to the other.
The only option open to me is to make an order that one parent have sole parental responsibility for the children and which parent that is to be will be determined by the orders I make about the children’s living arrangements.
Conclusion
The father is not perfect. He committed acts of family violence in 1994 and 2008 and he engaged in some pushing and shoving with the mother on other occasions. He was obviously a participant with the mother in arguments which were distressing for the children, and I am satisfied that on occasion the father behaved insensitively to the children and harshly and abusively disciplined them.
The father was not all bad during the relationship however and there was no evidence that the children’s pre-separation relationship with him was all bad. [X] wanted the mother to reconcile with the father in 2008 because he loved the father and wanted to live with both parents and there was little to support a finding that the father had ever behaved harshly to [Z].
Nothing in the evidence suggests that the extreme outcome of a no time order would ever have been appropriate in this case.
While there is some substance in the mother’s concerns about aspects of the father’s parenting if her true motivation had been to ensure that the children had a healthy relationship with the father she would have engaged in dialogue early on and ensured that time occurred safely rather than simply obstructing time altogether and slowly but surely turning the children against the father.
The children did not deserve what the mother has done to them. She has robbed them of the opportunity to interact with the father post-separation and to get to know him outside the unhappy home situation in which they were living prior to separation and to form their own view of him. She has emotionally abused them and possibly caused them long term harm.
The flavour of the mother’s evidence was that between the father’s injury in 1995 and his return to work in 2004 the father made no contribution to the financial costs of the household. I do not accept that this. During this period the father was either in receipt of workers compensation payments or the lump sum and I am satisfied that he had the capacity throughout this period to contribute to the day to day costs of the household. The father said that he used the money available to him for family purposes and while the mother did not accept this she gave no evidence which suggested that the money was frittered away or spent on lifestyle items which benefited only the father.
The mother did not provide any evidence about her own income during this period which would allow me to conclude that her income greatly exceeded anything available to the father.
The mother did not give any evidence that she had an additional burden cast upon her as a result of the father’s 1995 injury. She was working during the day and said that her role at home was to cook dinner and do housework. She did not give any evidence of having assisted the father after his injury or during the period 1996-2001 when he was off work. She agreed during cross-examination that she did not visit the father in hospital after he was injured and did not take him to rehabilitation appointments or care for him during the day.
The mother was reluctant to acknowledge that the father may have been in considerable pain as a result of this injury and could only bring herself to say that he would have been in a little pain.
In 2001 the father purchased the [omitted] business and he operated this until 2003 when he sold it and commenced working on wages, first for [omitted] and then in August 2004 for [omitted].
On 17 November 2004 the father had a second workplace accident. He was then either off work or on restricted duties until August 2005 and in September 2005 he lost his job. He did not work again during the relationship but he received fortnightly workers compensation payments.
The mother’s counsel submitted that the parties were more reliant on the income of the mother after the father’s second injury but that assertion was not supported by any evidence.
The Property K property was unencumbered between 1998 and 2006 but in 2006 the parties borrowed $60,000.00 secured against the home. They used $18,000.00 of this money to buy a campervan and $41,000.00 to pay credit card debt.
The father sold the campervan in November 2009 for $13,000.00 and paid the money onto the mortgage.
The mother claimed that she was the primary homemaker and parent during the relationship. She refused to concede that the father had played any significant role in this regard even during periods when he was at home during the day and she was at work. She insisted that her father or day care took up the slack in caring for the children when she was at work.
The mother did not provide an affidavit from her parents in support of this claim.
The father’s evidence was that he played a significant role in caring for the children and doing home duties between 1998 and 2001 and also after 2004 although he conceded that during the latter period he was:
restricted in household activities, home maintenance and [had] disturbed sleep and depression.[32]
[32] Father’s affidavit paragraph 37
The father went into detail about the things he did in the home and in caring for the children and while conceding that his second accident had restricted his capacity he said that:
it didn’t stop me from making an effort in the house to do as much as I could.
The father’s friend Mr B gave evidence about the father’s involvement with the children prior to separation and although he necessarily only provided snapshots of isolated events his evidence was unchallenged.
While the mother disputed the extent of the father’s role in the home and as a parent between 1994 and 2004 she gave no evidence at all in her affidavit to suggest that as a result of the father’s first work related injury his capacity to help at home and in parenting the children was impaired. She gave no evidence that as a result of the father’s second work related injury he was impaired at home or in caring for the children either, but her counsel asked me to have regard to the contents of reports about the father’s second injury which he attached to his affidavit.
A July 2007 report stated that if the father attempted to mow the lawn, do yard work or undertake repairs or refurbishments he suffered quite excessive pain and that he advised that his partner did most of the mowing and that he had difficulty assisting her within the home without suffering aggravation of his symptoms.
A July 2007 report by the Occupational Health Assessment Centre in Sydney reported that the father was:
...unable to undertake normal chores around the home at this time, nor to assist his partner within the home apart from some help with cooking. In order to avoid aggravation of his symptoms and in the absence of gratuitous assistance provided by his partner he would require the provision of paid domestic commercial assistance at a level of 8 hours per week on an ongoing basis.
In a report dated September 2007 a specialist said that the father had told him that he “[did] very little in the way of housework” and had described the limitations in him being able to do lifting and tasks such as vacuuming and cutting pumpkin.
The mother is hostile to the father and when challenged she was forced to make admissions about some of the things the father had done. She conceded for example that she and the father went to the school together to enrol [Z] in 2007, and on the enrolment form the father appears as parent 1 and the mother as parent 2.
Of course the father cannot have it both ways and tell one story to his doctors and another to this court, and the evidence in the 2007 reports does suggest that in the last five years of the relationship the father was inhibited in the things he could do at home. However I am satisfied that he played a much greater homemaker and parent role overall than the mother is now willing to concede, especially during the period 1995 to 2004 and that his evidence that he always did what he could should be accepted.
Between February and June 2008 when the parties were separated the mother was the children’s primary carer. She complained that the father did not pay child support during this period but did not say that she had applied for a child support assessment.
Post separation contributions
The father has lived in the Property K property since separation and has paid the mortgage and outgoings. The property valuer commented that the home looked neglected but there was no evidence which would allow me to find that the father had neglected the home to the extent of affecting its value.
The mother complained that she had been paying far more in rent since separation than the father had been paying on the mortgage and while this may be true when the insurance and rates paid by the father as disclosed in his financial statement are factored in there is not much difference between the amounts each is paying of and incidental to their accommodation.
The mother submitted that her post separation contributions exceeded those of the father because she had the sole day to day care of the children. I do not accept that the mother should get credit for this when she engineered the situation and the father never willingly gave up his role with the children.
The mother said that she should be given credit for her financial support of the children post-separation and this is a stronger argument, because while the father has paid child support it has not until very recently been a substantial amount.
The father has been paying about $346.00 per week since October 2012 and in her affidavit sworn three weeks into the 2013 year the mother said that she had received “$1,400.00 this year.” However prior to that the father was not paying anything which even came near to half of the costs of supporting the children.
The mother will get some financial recompense for this when the child support arrears of $13,000.00 to $15,000.00 are collected, but I am prepared to accept as a general proposition that at least until recently the mother was contributing much more financially to the care of the children than the father.
The mother had superannuation worth $40,000.00 at separation and has $61,770.00 now. Some of this increase would have been due to interest on money in the fund at separation but it is largely the result of the mother contributing post separation. The father’s superannuation on the other hand has declined post separation and this post separation issue also favours the mother.
Conclusion about contributions
There was no compelling evidence that either party had assets at the commencement of cohabitation which outstripped those of the other in dollar terms, and neither parties counsel urged me to find otherwise.
The unit owned by the mother was ultimately a valuable asset because she received $70,000.00 upon its sale. It was sold ten years into the relationship however and during that period the father, in addition to making other contributions, made direct contributions to the unit by helping to renovate it on two occasions.
The father introduced two large lump sums which were received as a result of him being injured and they must be treated as contributions made solely by the father. This is not a case in which there was evidence of the mother making direct contributions by helping the father fight for his entitlement nor is it a case where there was any evidence that the mother contributed to the father’s welfare while he was incapacitated or recovering.
Some of the first lump sum was used for living costs. In this regard it must stand in the place of wages and the father ought not to get any special credit just because wages were introduced by way of lump sum rather than as a result of weekly or fortnightly payments.
Some of the money went into purchasing lifestyle items like the Grizzly motor bike which have not been included in the pool, and the money used to purchase the [omitted] business largely went to purchase the father an income, although he did receive $15,000.00 upon the sale of the business.
Importantly something like $220,000.00 (if a very rough amount is allowed for acquisition costs) went to acquiring the Property K property.
The second lump sum exists now only as a notional asset save that the Landcruiser the father purchased with it is in the pool.
The mother made a significant contribution during the relationship as wage earner and as homemaker and parent but I am satisfied that the father also made significant contributions in that regard. The medical evidence supports a finding that he was somewhat handicapped in what he could do around the home after the second accident but I accept that he continued to contribute as much as he could.
There was no evidence that the father’s first injury required the mother to take on any additional burdens at home and while the reports produced by the father suggest that this might have been the case after the second injury the mother gave no evidence herself to confirm that this was so.
Post separation contributions favour the mother because her superannuation increased by about $20,000.00 and she was the primary financial supporter of the children.
The mother’s counsel submitted that I should find that contributions were equal up to the point of separation and that the post-separation contributions favoured the mother and that as a result contributions should be assessed as 55% by the mother and 45% by the father.
I do not accept that contributions during the relationship were equal, in light of the two very large amounts which flowed from the father being injured. The father’s direct contributions resulted in the existence of more than half of the asset pool, and I do not accept the mother’s claim that during the period the father was off work she was the sole financial provider for the family. That submission overlooks the father’s receipt of workers compensation payments in place of wages and the existence of some of his lump sum which also stood in place of wages.
The father’s counsel urged me to find that contributions were 60% to 70% by the father, but this was on the basis that there was no add back of any part of the second lump sum.
I accept that the mother contributed throughout the relationship as wage earner and parent and that from her initial introduction of the unit a benefit flowed to the family but if it were not for the issue of post-separation contributions I consider that a 65% finding in the father’s favour would be appropriate.
In light of the mother’s financial care of the children for almost four years after separation however and her contributions to her superannuation I assess contributions as 62.5% by the father and 37.5% by the mother, which effectively gives the mother a 2.5% adjustment ($13,912.25) on account of post separation contributions.
This would entitle the father to $347,806.25 and the mother to $208,683.75.
Step 3 – S.90SF(4)(d), (f) & (g)
Section 90SF(d) and (f) of the Family Law Act have no relevance in these proceedings. As to s.90SF(4)(g) I have taken past payment of child support into account in assessing contributions and will take the future liability for child support into account in assessing s.90.SF(2) matters.
As required by s.90SF(4)(e) I therefore now turn to consider the matters in s.90SF(2).
S.90SF(2)
The mother is 48. She is in good health and is employed as a [omitted] on a salary of $52,260.00 per annum. The mother has a strong employment history and is likely to be able to continue in employment but there was nothing to suggest that her income was likely to increase greatly in the future.
On the basis of contributions the mother is entitled to $208,683.75. She will retain her superannuation and motor vehicle and is thus entitled to an additional $121,383.78.
The mother owes $15,500.00 on a credit card and $3,100.00 to Buyers Edge. If she owes money for legal fees I was not told about it.
The mother will have the sole care of the children in the future. As far as I can gather the father is currently assessed to pay child support of $13,205.00 per annum ($253.94 per week) but is paying a higher amount of about $346.00 per week because arrears are being collected although I confess that I found the evidence about this issue confusing.
It is unclear to me when and if the assessed child support will drop as a result of the effect of the lump sum payment on the assessment ceasing but it is reasonable to find that if the father continues to earn at this current rate the mother will have the greater burden of financially supporting the children in the future.
The mother queried whether the father could be depended upon to reliably pay child support at all in the future. She said that he had a history of working part time as well as full time and pointed to the fact that he currently owed arrears of child support.
There was no evidence that the father would actively avoid paying child support but of course if he is unable to work in the future because of his health his financial contribution to the care of the children might become small indeed
The mother said that she hoped to be able to keep [X] at [C] School and perhaps to enrol [Y] and [Z] there. The fees at [C] are over $3,000.00 per child per year. The mother gave unchallenged evidence that in 2006 the parents agreed to [Y] attending a Catholic school but they did not agree during the relationship that the children should otherwise have a private school education and the father bears no responsibility for meeting the costs of the children’s enrolment at [C]. If the mother cannot afford the costs then the option of a public school education is available.
The father is 49. He is employed by [omitted] and earns $62,400.00 per annum. He said that his only free day at the moment was Saturday suggesting that he earns this income by working 6 days a week.
The father said that he was obliged to work because he had used up all of the lump sum and was not eligible for Centrelink benefits until the end of 2014. However he said that problems with his back and shoulders meant that this work caused him severe discomfort.
I accept that the father is suffering some pain and discomfort at present but he provided no medical evidence to support his claim that his previous injuries made it difficult for him to work as a [omitted]. The only evidence remotely touching on this is in a report dated 24 July 2007 in which the opinion was expressed that the father was unsuitable to return to any of his previous occupations which were identified as being labouring type jobs, and his treating specialist in September 2007 stated that he was:
Not fit for any employment which would place stress on his shoulder regions at the present time.
It is difficult to be certain about the father’s employment future. He is managing his [omitted] job at present, albeit while suffering pain, and he is a resourceful man. However he has always done jobs requiring physical effort and his options have progressively narrowed over the years as a result of his injuries.
On the basis of contributions the father is entitled to $347,806.25. However this includes his motor vehicle worth $26,720.00, superannuation of $1,647.00 and a notional asset of $155,823.00, so in real terms he is only entitled to $163,616.25 plus his Toyota and superannuation.
The father said that he owed his solicitors $65,000.00 for legal fees. They have placed a caveat on the Property K property in support of a debt of $52,726.99 but the father did not make clear whether this overlapped with the $65,000.00. He also said that he owed $1,200.00 to his mother and $25,000.00 to his sister which he borrowed to pay the barristers fees for the family law hearing.
The father also owes undisclosed amounts to [omitted] Plumbing for repairs at the Property K property and to a gas company for the supply of gas. He is paying these debts off by weekly instalments.
The father owes either $13,000.00 or $15,000.00 child support arrears. If the mother retains the home and the father receives a cash payment from her the Child Support Agency will recover the arrears from that cash payment.
If the father retains the home and does not receive a cash payment from the mother it is unclear what the child support agency will do but they may well seek to recover it by adding an increased amount to the father’s weekly payments.
Pursuant to s.75(2)(o) I am required to take into account any other fact or circumstance which the justice of the case requires me to take into account and there are two relevant matters here.
The first is that the mother will be receiving $60,000.00 of her entitlement as superannuation which will not be of any practical value to her until long after the children are off her hands.
The second is that the father will be receiving a notional asset of $155,823.00 which will be of no value at all to him in paying his debts and I am satisfied that he owes a substantial amount to his solicitors including a substantial amount for the criminal proceedings.
I have to be a bit careful about the extent to which I take the existence of the notional asset into account of course because part of my reason for adding it back was a concern about non-disclosure and a concern to ensure that the mother is not made responsible for the father’s legal costs in the family law matter and the father failed to provide a break up of what he had spent on the various legal matters.
He definitely spent $18,000.00 on defending the criminal charges however and an unknown amount on the ADVO proceedings and he owes a significant sum to his lawyers arising out of the criminal proceedings and I do consider that I can taken into account as a s.75(2)(o) matter that the father is heavily burdened with debt partly because he has successfully defended criminal and ADVO proceeding brought against him since separation.
Conclusion about s.90SF matters
The mother’s counsel submitted that there should be an adjustment of 7.5% for s.90SF matters in the mother’s favour on the basis that she would be the sole carer of the children in the future.
There is some merit in this submission. It is not the father’s fault that he is not seeing the children but even if he was seeing them, for example on alternate weekends and during school holidays, the mother’s primary care of them would be a relevant s.90SF factor, and even if the father continues in employment and continues to pay child support regularly for some time the financial support of the children will inevitably fall more heavily on the mother in the future and the mother will be the person required to juggle her work around her child care responsibilities.
However while the mother may suffer some hardship if the father ceases work and ceases paying child support before the children are adults, in the longer term and after the children are all adults I can be reasonably confident that the mother will still be able to work and accrue superannuation whereas the father’s working future is much more problematic.
The father’s counsel submitted that there should be an adjustment of 10% in the father’s favour because his working future was much more problematic and another factor which favours the father is that he has significant debt and a large part of his entitlement will be a notional asset.
I consider that the s.90SF factors balance out in the mother’s favour, first because she will be faced with bearing the greater share of the costs of caring for the children immediately, whereas the father is working at the moment and the cloud is only over his long term working future and second because she will be receiving a portion of her entitlement as superannuation which will not assist her to achieve her immediate goal of rehousing herself and the children.
A 7.5% adjustment would be too high however. The father is paying child support and will continue to do so while he works and when the factors which favour the father are balanced against the factors which favour the mother I consider that a 2.5% adjustment in the mother’s favour is appropriate. This will give her an additional $13,912.65 and create a differential of $27,824.50 between the parties’ entitlements.
This would entitle the mother to $222,596.00 and father to $333,894.00.
Step 4 – the appropriate orders
Each party sought first option to keep the Property K property.
The father has lived in the property since separation nearly four years ago. He said that it was important to him to keep it as it had a spa installed which he used to soak his back.
The mother wants a home and seeks to acquire the one at Property K, and as I observed during submissions although the mother did not raise it, there is a small financial advantage to her doing so as she will then avoid the need to pay stamp duty.
I intend to give the father the first option to retain the home. There is a possibility that he will not be able to borrow sufficient to refinance the mortgage and pay the mother out but he has lived in the property for four years and he did put forward something other than the mere fact of home ownership as a reason why he should be given first option to retain it.
If the father is not able to buy the mother out then the mother will have second option to retain the home and if she is unable to refinance and pay the father out then the home will be sold.
If the father keeps Property K the parties will have the following:
| Ownership | Description | Value |
| Father | Net equity in Property K | 285,000.00 |
| Toyota | 26,720.00 | |
| Superannuation | 1,647.00 | |
| Notional asset | 155,823.00 | |
| Less payment to mother | 135,296.00 | |
| Balance | 333,894.00 |
| Ownership | Description | Value |
| Mother | Payment from father | 135,296.00 |
| Superannuation | 61,770.00 | |
| Toyota | 25,530.00 | |
| Balance | 222,596.00 |
The mother is working and it is difficult to believe that receipt of this capital would not be sufficient to enable her to purchase a home.
If the mother retains Property K the parties will have the following:
| Ownership | Description | Value |
| Mother | Net equity in Property K | 285,000.00 |
| Superannuation | 61,770.00 | |
| Toyota | 25,530.00 | |
| Less payment to the father | 149,704.00 | |
| Balance | 222,596.00 |
| Ownership | Description | Value |
| Father | Toyota | 26,720.00 |
| Superannuation | 1,647.00 | |
| Notional asset | 155,823.00 | |
| Payment from the mother | 149,704.00 | |
| Balance | 333,894.00 |
The father did not indicate whether he would attempt to buy another home but this settlement would at least see him free of debt.
In her Amended Reply the mother sought an order for the return to her of a number of specific items one of which was a skim board which is of importance to [X]. No inquiry into the issue of whether the father should return/make these items available to the mother occurred during the hearing and I do not intend to make an order concerning the specific items.
The father sought an order in his Amended Response that the engagement ring be returned to him but he did not pursue this at the hearing.
The father sought an order that he have sole responsibility for management of the children’s [omitted] Managed Investment accounts. This would be a parenting order rather than a property order but it is convenient to deal with it here.
The father sought control of the money on the basis that $6,000.00 of it came from the paternal grandmother who gave the children $2,000.00 each at the time of their births. The mother alleged in her affidavit that it was $1,000.00 each but conceded during oral evidence that the father was correct. She said however that she had built up the account by regularly putting $40.00 per fortnight into it.
I can understand why the father sought this order given that his mother made a substantial contribution to the money in the accounts. Pursuant to the parenting orders however the children will be living with the mother, and the money in the accounts might be usefully applied to paying for the children’s school fees or other expenses for them during their childhood and adolescence. It is therefore appropriate that the mother be given control of this money.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgement.
I certify that the preceding four hundred and thirty-three (433) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 4 June 2013
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Negligence & Tort
Legal Concepts
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Injunction
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Remedies
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