Van DIEMAN and Van DIEMAN (No 4)

FAMILY COURT OF AUSTRALIA

VAN DIEMAN & VAN DIEMAN (NO 4)

[2013] FamCA 861

FAMILY LAW – Parenting: Allegations of sexual abuse by a child. Involvement of psychotherapist in obtaining “disclosures” – Conflicting evidence of experts as to risk and risk analysis – Appropriateness of introduction counselling where no relationship between husband and children – Supervision to follow counselling even where no unacceptable risk.
FAMILY LAW – PROPERTY – very small property interests – Wife has greater need – Husband’s impending bankruptcy and its impact on unsecured debt due to husband’s father.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bevan & Bevan [2013] FamCAFC 116
Briginshaw (1938) 60 CLR 336
Johnson and Page [2007] FamCA 1235
Mallet v Mallet (1984) 156 CLR 605
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Stanford v Stanford (2012) 87 ALJR 74; 293 ALR 70
Steinbrenner [2008] FamCAFC 193
Woollams & Woollams (2004) FLC 93-195

APPLICANT:

Ms Van Dieman

RESPONDENT:

Mr Van Dieman

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8968

2011

DATE DELIVERED:

1 November 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

9, 10, 11, 12, 13, 16, 17 September 2013; 28 & 29 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dunlop

SOLICITOR FOR THE APPLICANT:

David Stagg Tonkin & Co

THE RESPONDENT:

In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Arnold

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Agricola Wunderlich & Associates

Orders

That the wife have sole parental responsibility for the children J born … 2006, K born … 2009 and L born … 2010.
That the children live with the wife.
That the husband and wife forthwith do all things necessary to attend with the children at such times and under such conditions as may be directed by an experienced psychologist nominated by the Independent Children’s Lawyer for the purposes of establishing a relationship between the husband and the children. Such attendances shall be at the husband’s expense and continue until such time as the psychologist considers it is appropriate to commence a relationship at the children’B Contact Centre service otherwise referred to in these orders.
That to the extent that the parties have already enrolled at a contact centre service for the purposes of supervised contact, no such time shall commence notwithstanding any placement being made available until the completion of the counselling referred to in paragraph 3 of these orders.
That upon the children being ready as identified by the psychologist in these orders to commence a relationship of supervised time with the husband, the wife make the children available at the appointed time on a fortnightly basis for such periods as can be accommodated by the children’B Contact Centre service for a period of supervised contact for 12 months.
That the Independent Children’s Lawyer provide to the psychologist referred to in paragraph 3 of these orders and the contact centre referred to, a copy of these orders and the relevant paragraphs of the reasons for judgment this day which describe the need for supervised time.
That the Independent Children’s Lawyer advise the psychologist and the contact centre service that the Court has found that there is no unacceptable risk of sexual abuse of the children.
That the Independent Children’s Lawyer be at liberty to provide to the Department of Human Services, a copy of the orders this day and the reasons for judgment generally.
That there be liberty to apply to both parties and the Independent Children’s Lawyer with respect to the implementation of paragraphs 3, 4 and 5 of these orders.
As and from the conclusion of the twelve month period of supervised contact referred to, the husband spend time with the children as follows:
(a)For the first six month period after the conclusion of the supervised time, on each Saturday from 10.00am to 6.00pm;
(b)For the ensuing six months after (a), on each alternate weekend from Saturday morning at 10.00am to 6.00pm on the Sunday;
(c)After the conclusion of (b), on each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday morning; and
(d)Upon the commencement of the time referred to in (c) for one half of all school holidays by agreement and failing agreement, the first half.
That until the husband’s time during school holidays commences, the orders for weekend time continue during all school holiday periods but upon the commencement of school holiday time, the orders for weekend time shall be suspended during school holiday time and resume once school recommences as if the orders had not been so suspended.
That the Independent Children’s Lawyer be discharged from the proceedings once the children’B Contact Centre service commences supervision.
That the wife forthwith provide to the husband, at his expense, a copy of all photographs taken of the children subsequent to separation which are currently in her possession.
That the real property at M Street, Suburb N be forthwith placed on the market for sale and the husband vacate the property by 4.00pm on Friday 22 November 2013 and the sale not to take place until at least 14 days after the husband vacates. The wife have the conduct of the sale and the husband sign all necessary documents to give effect to the sale and its settlement.
That upon the settlement of the sale of the home, the following be paid:
(a) Any costs, commissions and expenses of the sale;
(b)Such funds as may be required to discharge the mortgage (including the car loan attached to the mortgage) encumbering the real property;
(c)The husband’s father, the sum of $32,489; and
(d)The balance be paid to the wife.
That each party otherwise retain to the exclusion of the other, all superannuation interests and other property in their respective possession as at the date of these orders.
That each party otherwise be responsible for and indemnify the other in respect of any debts currently in the name of that party as at the date of these orders.
Save as to any issues as to costs, all outstanding applications are otherwise dismissed.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED:

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Van Diemen & Van Diemen (No 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8968 of 2011

Ms Van Dieman

Applicant

And

Mr Van Dieman

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

These parenting and property proceedings were contested over a number of days. The parenting proceedings concern J aged seven, K aged four and L aged two. The children have had no contact with their father Mr Van Dieman (“the husband”) for two years as a result of serious allegations of sexual abuse against him. Those allegations have been made by Ms Van Dieman (“the wife”). Her knowledge of the accusations comes from what she has been told by the children or other adults involved with those children and from inferences she drew from the husband’s conduct. She believes her daughter and son.
The primary source of information giving rise to the accusations came from Ms C who described herself as a psychotherapist. Ms C was told by J that the husband had sexually molested her. The Court’s focus during the hearing was on whether any credence should be given to the statements made by the child. After a variety of interviews and investigations, J then told the wife that her father had sexually interfered with her.
The husband’s case was the wife had colluded with Ms C and others to prevent him from having any relationship with his children. In other words, no allegation was ever made by the child or indeed, the children.
There are three primary parenting determinations to be made here. They are:
·    First, because of the husband’s concerns about the wife’s ability and capacity to care for the children, should they live with him?
·    Secondly, if the first question is answered in the negative, is there an unacceptable risk of harm for the children being in the care of the husband or in his company?
·    Thirdly, if there is no unacceptable risk of harm to the children but there is no justification for them being removed from their mother, what time should the husband spend with the children?

Outcome

This case was heard over a number of days in two periods. On Tuesday 29 October, after final addresses were heard, I reserved judgment. Notwithstanding the complexities of the voluminous evidence and the approach that the husband and wife each took, the husband wanted the Court to deliver judgment quickly and if possible at the end of that week. The husband’s position was that there was not only no unacceptable risk but never had been and as such, his disrupted relationship had to start immediately. He said that it did not concern him if the judgment was truncated or delayed until a later time provided that the orders for the contact to start could be made. I pointed out the dilemma with that lay in the fact that if there were persons other than just the parties who needed to know what orders were being made and why, that course was problematic.
I have endeavoured to cover the evidence as best I can and applied the principles of Part VII of the Act. I have complied with the husband’s wish to deliver these reasons quickly and perhaps not with the extensive coverage of finer evidentiary issues as I may have wished because I do indeed wish the husband’s time with the children to start but not until the counselling and other conditions are met.
In my view, the first question must be answered that there is no evidence justifying a removal of the children from the wife such as to place them in the care of the husband. The husband’s oral application made during the final hearing for residence fails.
The second question is far more difficult to answer but on the balance of probabilities, there is no evidence that would justify a finding of unacceptable risk of sexual abuse such that the husband should be excluded from the lives of the children.
The third question is really an extension of the second. I find there is no relationship between the husband and the children largely because of their age and the period of time since there has been any contact. There is every reason to endeavour to establish a relationship but I find it will be a slow process and one that requires supervision because of the nature of the relationship and because the children’s perception of their father is that he has and will, hurt them.

Property dispute

The parties also had a property dispute which they could not resolve and the evidence each presented was scant. The Court has done the best it can with that information.
On the basis of the evidence, I find that because there is no suggestion from the husband that he has the capacity to buy out any of the interest of the wife in the house and pay his creditors including his father. The mortgage is now in arrears so the house should be sold and the proceeds distributed such that the wife should receive all of the net after the payment of the debt to the husband’s father.
The parties did little to assist the Court in respect of the peripheral property issues and I find there is no just and equitable basis for the Court to alter the interests of the assets otherwise than as set out in these reasons.

The husband’s oral residence application

By his response and outline of case both filed on 11 January 2013, the husband said he wanted the children to live with the wife. During his cross-examination of the wife however, the husband said that because of his concerns about the wife’s standard of care for the children, he had altered his position so that they should live with him. He added that he knew that “would not happen”. Despite that, he pursued the order. In final submission, the husband referred to the children resuming “access” and him assuming a “standard” “shared parenting role”. That was unrealistic because of the role both parents have played in the lives of these children. The husband’s relationship with them has been limited and the wife is still their primary attachment figure. Nothing I heard would elevate this case to one of concern about the wife’s care of the children such as to remove them based on a better proposition by the husband or on the basis that their welfare was in jeopardy to the extent that the state welfare authorities should step in. It is very clear that the husband lacks insight as to his role leading up to these allegations. His approach to professional witnesses was that he was the victim of a conspiracy between his mother-in-law and others. During the hearing, he made his disdain for the wife’s mother obvious. He pursued the order that the children live with him because that was the best way for him to have a relationship with the children regardless of that course having an impact on the children. In his final submission, he sought money from his mother-in-law by way of compensation for his wages lost. He noted that she had paid the wife’s legal fees and said that had that not occurred, the trial would not have proceeded as it did. He proposed that any future counselling of the children be paid for by the wife, or presumably her mother. He lacks insight as to how to repair the damage to his children. Dr O’s view set out below was correct.
This case is really about whether there is an unacceptable risk to the children’s physical and psychological safety if they were in the husband’s care for any period of time. That risk is not just about sexual abuse. It is about the risk of the husband telling the children he was a victim of a conspiracy. He denied he would be so involved; I do not believe him.

The applications of the parties

In her amended application filed 22 August 2013, the wife sought sole parental responsibility for the children and that they live with her. She sought an order that they not spend any time at all with the husband. She otherwise sought property orders under which the husband was to pay her $90,000 failing which, the former matrimonial home be sold. She also sought an order that the husband be solely responsible for a debt to his father and that otherwise the assets of the parties remain where they were.
In her counsel’s final address, the wife altered her position in respect of property but not parenting. Her counsel submitted that the Court should find there was still an unacceptable risk and that there should be no time. She submitted that if there was to be time on the basis of no such finding, it had to be supervised.
In respect of property matters, the wife submitted that the house should be immediately sold because the mortgage was in arrears. Despite seeking orders otherwise mentioned about the husband being responsible for the debt to his father, the wife agreed initially that the debt should be paid in full from the sale proceeds because she “had always wanted him paid”. When I canvassed my concern about that, counsel said her instructions which she then obtained were to retract that position. I do not think that was appropriate having regard to the submission that had been made about what her client’s position had “always” been.
The husband filed an outline of case document in January 2013 at which time he sought equal shared parental responsibility, the children live with the wife and that he have time with and communicate with the children each alternate weekend from Friday evening to Monday morning and Wednesday afternoon through to the Thursday of the alternate week. He also sought a variety of other orders relating to the children. One of them was that the children be dropped off at the Suburb N Police Station if agreement could not be reached otherwise. He also sought an order that in respect of property, he pay to the wife $5000. In respect of that order, during his evidence, the husband retracted that proposal and said that no payment should be made at all.
In his final address, the husband set out a raft of orders that he wanted the Court to make. Translating them into simple form, he sought that:
·He resume contact immediately;
·His time be unsupervised but with appropriate transition orders which he could not particularise;
·That the children live with him (as he described it as part of a solutions based result);
·The wife or her mother cover his legal costs and that his claim be no less than $95,000 which was said to include wages;
·Any child support penalties be waived;
·The Notice of Risk of Child Abuse in 2011 be declared null and void;
·The Department of Human Services be directed to accept the ruling about the Notice of Risk of Child Abuse and forthwith cease action against his partner based on the allegations against him;
·There be non-denigration orders against the wife and her mother;
·The wife provide photographs of the children;
·He have access to current medical information about the children;
·The parties work with Mr P (a church person) to establish a “working conversational relationship” to facilitate shared parenting.
Although he did not mention it in his written submission, the husband also reiterated that there should be orders for equal shared parental responsibility.
In respect of property matters, the husband submitted that his father could be paid but that otherwise there should be nothing paid to the wife.

The hearing in January

This case was designated “Magellan” because of the allegations of sexual abuse of the children. It went through a variety of hearings in 2012 and I specifically listed it for trial before a judge in January 2013.
On reading the file, it became apparent that the husband, who was then represented by counsel, terminated his instructions and then sought an adjournment. That adjournment was granted with a cost order being made against the husband. The costs remain unpaid.
Ultimately, the delay between January and August was caused by the fact that the Registry did not have sufficient judges for the matter to be allocated quickly.
Even during the hearing which ran on consecutive days, the husband ran out of witnesses and several hours were lost. That unfortunately delayed the hearing further when it was adjourned part-heard.

The evidence that the parties relied upon

The wife’s witnesses all relied upon affidavits. The wife and her mother were the only witnesses for her.
The husband relied upon his girlfriend Ms E, Ms G a psychologist, Dr H a forensic psychologist and a retired police officer Mr F. The last witness was unavailable because he had gone overseas but the husband wished to rely on his affidavit.

The Independent Children’s Lawyer

An Independent Children’s Lawyer was appointed in this case and she briefed counsel to appear on her behalf.
The witnesses for the Independent Children’s Lawyer were two family consultants, a forensic psychologist Ms Q, Ms R Van Dieman who is the husband’s sister-in-law, the childcare centre employee, a school welfare officer and a kindergarten director. The Independent Children’s Lawyer also called Ms C who described herself as a psychotherapist and whose evidence I shall deal with in some detail below. The Independent Children’s Lawyer also relied upon the evidence of Dr O who is a psychiatrist.

Counsel for the Independent Children’s Lawyer indicated that the evidence about the sexual abuse had to be tested before a determination could be made whether there as an unacceptable risk but on any view, he did not propose that any change of residence should occur nor that there should be an immediate and unsupervised contact arrangement with the husband.
In final submission, Counsel for the Independent Children’s Lawyer submitted the following orders should be made:
·That the wife have sole parental responsibility;
·That the children live with the wife;
·That the husband have contact with the children at B Contact Centre for the maximum amount of time available;
·That the contact time be monitored and reportable;
·That the parties not denigrate one another;
·That the parties not discuss issues about the proceedings and the findings with the children;
·That both parents undertake comprehensive parenting courses;
·That the husband attend Ms G for personal counselling;
·That the children attend the Australian Childhood Foundation for counselling and that that organisation be informed that no finding of abuse has been established.
Of the three positions after this lengthy hearing, the Independent Children’s Lawyer’s proposals best suit the needs of these children but with some precise additional conditions.

Costs orders in the past

In final address also, both the Independent Children’s Lawyer and counsel for the wife referred to orders of the Court made in December 2012 and January 2013 against the husband. Each was precise in its terms.
None of those costs has been paid.
It might look superficially attractive to make an order for the payment of those outstanding orders against the proceeds of the sale of the home but if the wife is to receive the bulk of those amounts, the wife would be paying the husband’s obligations. Each of the claimants indicated that they would either take other measures to recover their entitlements or, in the case of the Independent Children’s Lawyer, claim that obligation from the husband’s share (if any) of the proceeds of the house sale. In respect of the latter, there will not be any.

Litigant in person

The husband represented himself throughout the trial. At various times, I explained to him the process that would be followed. That was also a matter of discussion at the preliminary hearings in which the matter was set down for trial.
When asked, the husband indicated that he understood the process and his cross-examination indicated that that was the case.
The husband’s final submissions were prepared in advance and in writing. He confirmed that what he wanted to say was largely contained in that document. He confirmed that some of it had been prepared by his counsel whose services he had terminated in January 2013 and who was now suing him.

Credibility

At various times during the cross-examination of the wife, the husband referred to her as having lied. Indeed on one occasion, she did say that she had lied but I am satisfied that it related to an issue about which her memory was faulty rather than a deliberate misleading of the court.
The demeanour of the wife in the witness box was such that she appeared nervous and on at least one occasion, broke down. Her evidence was tested not only by the husband but also by counsel for the Independent Children’s Lawyer. Nothing I heard in her evidence would justify a finding that she deliberately lied about anything. Whilst the husband at various times suggested that the wife had colluded with other people including her mother to orchestrate the allegations of sexual impropriety against him, I find that was never the case on the evidence.
It is significant in this case that Dr O and psychologist Ms G both viewed the husband as aggressive and loud. Those descriptions fit comfortably with the evidence of the wife about the nature of the relationship prior to the parties’ separation. To be then cross-examined by the husband who was without a legal representative put the wife in a very difficult position. I attribute her demeanour in the witness box to fear of the husband and to her unfailing belief that he has sexually assaulted the two older children.
The husband was very single minded and saw cross-examination of himself an attack on his unshakeable belief. He was unable to contain himself to a simple answer and either gave extensive explanations for what he thought the examiner should know or alternatively, was verbally critical of the cross-examiner (and in particular counsel for the wife) for asking the question. Whilst a courtroom is not his normal comfort zone, his evidence was given in a way consistent with the observations of Dr O.
The husband is not a shrinking violet. He argued strongly for the position he adopted. Despite having heard criticisms of him about insight by the Family Consultant, Ms G and Dr H and having read the opinion of Dr O, he did not waiver in his criticisms of the wife and her mother. He did not see any blame on his own shoulders for the problems that were created because his fixation was that there never had been any sexual abuse of his children. He did not address the allied issue of his aggressiveness and the prospect that concerned me of him denigrating the wife and her mother, as well as others, to the children. Even in his final address, he seemed to bluntly rebuke his present partner from speaking whilst he was addressing the Court. In his written submissions, he attacked the expertise of the family consultant Mr T but when evidence was given that softened the earlier recommendations, the husband seemed in a quandary. I have serious concerns about what he has learned in respect of his own conduct. His demeanour in the court room left questions about just what benefit he had obtained from attending for seven sessions of counselling with psychologist Ms G.
Notwithstanding his protestations, I have little confidence in his assurances about the future.
I cannot leave the issue of the husband’s credibility without reference to one small incident. I shall deal with the parties’ versions about a violent and unsavoury incident in which the husband snatched K from the maternal grandparents’ home. The small and insignificant issue was that the wife said that she telephoned the husband twice that morning to tell him of the health of K. He denied any such call was made. This was not a statement that he was unsure about; as in most things, the husband was emphatic that he was correct. The subsequent production of documents proved that two such calls were made. I find the husband lied about that. It made me doubt many things about his evidence.
In respect of property matters, the husband was nothing short of evasive. His disclosure of his financial position was in clear breach of his obligations to the Court and to his wife. What saved him in this case was the fact that I accept that there is a very modest amount of assets. Most of his evasive failure to provide documents related to his online label business but as no attempt had been made by the wife to enforce disclosure or have the company business valued, it is hard for me to be very critical of the husband. However, the absence of information from him together with the positive view his girlfriend had about the business which is still running, enables me to find he will be financially comfortable in the future when he gets out of his current financial dilemma.
Having regard to the demeanour of each party, the observation I have just made about the husband’s lie, and the way in which their evidence was prepared, I found the wife a much more reliable historian and wherever there is a dispute between the parties, I accept the wife’s evidence.

The standard of proof

For proceedings in this Court, the standard of proof is the balance of probabilities. That is set out in s 140 of the Evidence Act 1995 (Cth). Most of the matters upon which a determination was to be made were so made on the balance of probabilities. That is, the Court has to be satisfied that that is what probably happened. However, in respect of the sexual abuse allegations, I have been very mindful of the need for caution because of the consequences of any finding. This case had the added difficulty of the inability of the Court to objectively test some of those allegations. I have been conscious of the Briginshaw (1938) 60 CLR 336 test and taken a cautious approach particularly having regard to my criticism of Ms C as set out below.

Background

The parties began a relationship in 2003 but did not live together until they were married in 2005. They remained together until November 2010 when the relationship came to a permanent end. They are now divorced.
The wife is 29 years of age and engaged in home duties. She has no independent source of income. She is reliant on government benefits and upon the husband for child support.
The husband is 40 years of age and is employed as a camera operator for a company that manages speed cameras in Victoria. The husband works various shifts and I am not entirely sure what arrangements he has with his employer about income and shift work. He also runs the online business that I have already mentioned. The appalling lack of documentation by the husband but which was not pursued by the wife, leaves me in a position to conclude that it does make money but not much.
The husband had some shares before the parties married. The parties disputed whether they were all sold before or after the marriage but they seemed to agree that the figure was somewhere around $50,000. One way or the other, all of that money seems to have gone into either the financing of their honeymoon or into the family budget. There did not seem to be any indication that it resulted in an increase in the parties’ wealth.
Only weeks prior to the marriage, the husband purchased the property at M Street, Suburb N for $210,000. Because the wife was studying, the title to the property was placed in and remained in, the husband’s name. The husband conceded in evidence that it was always intended to be their joint property.
Out of the $210,000 purchase price, $170,000 came from a bank loan which was secured by a mortgage. The balance came from the husband’s father by way of a loan. The wife seemed to know little about what had happened.
Attached to the wife’s affidavit was a copy of a letter written by the husband’s father at the time he advanced the money to the husband seeking that his loan, which I understand now stands at about $32,489, was repayable when the parties were able to do so. No claim has been made by the husband’s father although it would appear, on the wife’s evidence, payments have been made periodically to him by the husband. Although the wife seemed to agree that the loan was made to both of them the document mentioned above appeared to be an agreement between the husband and his father. It made reference to a loan to the husband and wife but at that time, the parties were not married nor were they living together. It was not suggested by the wife that the document was not real.
It was common ground that the husband’s father was aware of the proceedings and had not taken any steps to intervene. The husband told me that regardless of what the financial position was, he would look after his father in the future. That became unnecessary because of what I find was the wife’s concession that the loan should be repaid from the sale of the house. In making an order for that repayment, I am conscious that other creditors who seem to be the focus of the husband’s suggestion that he will “go bankrupt”, may well miss out on recovering their money. The parties were both warned of the possibility of further litigation.
The confusion about the father’s loan was compounded when the wife amended her application to seek an order under s 90AE of the Family Law Act 1975 (Cth) (“the Act”) relating to the debt. She sought that the husband be responsible for it but none of the requirements that would satisfy Part VIIIAA could be seen to have been so satisfied on the evidence before the Court. Ultimately, counsel for the wife did not pursue the order.
There was also some evidence elicited from the husband in cross-examination that he had corresponded with his father about lodging a caveat against the title to the home. Just how that could occur remains unclear because the “loan” document makes no reference to any charge nor was it ever intended that the father have an equitable interest in the home as security for the money he provided. Similarly, no evidence was led which might give rise to a resulting trust or a constructive trust.
Against the property however is a caveat lodged by the husband’s former solicitor pursuant to a charge. That charge was not in evidence and the husband indicated that he was in dispute with his lawyers about owing them any payment at all.

Employment during the marriage

After the marriage, the husband was working and also engaged as a minister of religion. He then began the label business on a full-time basis. Whilst the husband disputed the wife’s version about employment, the difference was so minimal that it does not matter.
At the marriage, the wife was still studying and that continued into 2006. As 2006 began, the wife became pregnant with J. She continued as a student up until the birth of J and did not complete her honours thesis.
After the birth of J, the wife said that the husband’s behaviour changed.
Whilst agreeing with that, the husband said that it was in fact the wife’s behaviour that had changed and she had become more withdrawn after the birth of each of her three children.
There was a most unsavoury dispute between the parties over who did the housework. The wife said she did it all but the husband said it was he who did it all. What seemed to be common ground was that members of the church came to help. This was a relatively short marriage during which three children were born. I find that the evidence supports a conclusion that both parties did the best they could in what were trying circumstances not only because of the birth of the children but also the problems that the husband was having as a minister in his church and his own aggression towards the wife.

Problems in the relationship

The first sign of considerable problems in the relationship was after J was born. The wife’s version was that one day, her mother went to see what was wrong with J and a dispute occurred with the husband. This seemed to be the first dispute between the husband and the wife’s mother and they simply disagreed over J’s “dummy”.
Having regard to the findings that I have made about the wife being a more accurate historian and the fact that her evidence is supported by her mother, along with the evidence of Dr O’s view about the husband, I find that it was the husband who was the aggressor on the day. I find he became frustrated and was abusive and intimidating. Things did not improve thereafter in the marriage.
In January 2007, another dispute between the husband and wife occurred when they were in their car. The genesis of the dispute was the husband’s frustration. Again, this is consistent with the personality type observed by Dr O and indeed by the husband’s own psychologist Ms G. Bearing in mind the dispute between the parties was about a relatively innocuous incident, I find the wife’s version is the more plausible.
The finding just made is also supported by the fact that very shortly thereafter, the wife went to live with her mother and took J who was only three months old. The wife’s version was that the husband contacted her and asked her to return home on the basis that he would get help. The husband denied all of that saying that this was really all about the wife’s close relationship with her mother. He conceded that the wife never stayed away from home very long and it certainly did not happen after the birth of J. He said it only happened for a few days at a time such as for example, a weekend. The wife said that she told the husband that they needed to have some counselling and the husband agreed that they indeed went to counselling in Suburb U. Again, on the basis of the balance of probabilities, I find the version of the wife more plausible and I accept it.
In 2007, the wife returned to study but in that year, the husband stopped working in the job that he had and began preaching at a local Church. That continued until the end of 2007 when he started the online business to which I have earlier referred. This business sells labels and business cards through the internet. The idea was to supplement his income from the church.
At the beginning of 2008, the wife graduated from her studies. She is a qualified social worker and began working as a school chaplain. People in their church community assisted by caring for J until midway through 2008 when she was enrolled in childcare. J remained in childcare four days per week until November 2010.
It can be seen therefore that up until the end of 2010, both parties were earning a modest income and contributing it towards the family.
In 2009, the wife said that the husband was stood down from his position at the Church. This became a significant incident in the case. It was the wife’s case that the husband’s aggressive behaviour within the family caused consternation in the church and when she went to the church authorities for assistance, the husband was very critical of her. She said the husband had been stood down because of his behaviour towards her.
The husband’s version was entirely different. He said he was working 60 hours per week and was under an enormous amount of stress whilst he built up the congregation from a very small number up to a very large number. The stress and anxiety of his work gave rise to him asking for some leave and that was granted. He said that during the period of time that he was off leave, the person responsible for his ministry came to him and told him that he was dismissed.
For the same reasons as my other findings, on the question of behaviour, I find the wife’s version is the more plausible. However, the dismissal of the husband gave rise to an unfair dismissal claim for which the church made a payment in settlement. It seems the sum was very modest which tended to suggest it was a compromise by the church.
Despite struggling with exactly what happened and the paucity of evidence and documentation to support that evidence, after the payment was made, the husband did not return to preaching. He then obtained counselling which he said was successful. He acknowledged that he experienced high anxiety and minor depression.
It was the husband’s case that he did all of the caring of the children and the housework during this same period. I find that implausible having regard to the problems that he was having with his health and what seems to have been a distraction in his life involving counselling and his unfair dismissal case.
The parties’ second child K was born in 2009. Four days later, whilst still in hospital, the wife said she received a telephone call from the husband complaining that his own father was trying to hurt him. In his evidence, the husband said that he could not think of a time that this could have happened and that his relationship with his father was not tense. Whilst the husband denied the contents of the wife’s affidavit, he did not challenge her about her evidence and as indicated, he could not think of when this occurred. Those words were rather odd having regard to the fact that the wife identified it as a period of time when she was in hospital with K having just been born. More significantly, when the husband’s girlfriend gave evidence, it became apparent that the relationship between the husband and his father is not that close. On the balance of probabilities, I accept that there was some dispute between the husband and his father.

After K was born, the wife said that arguments escalated including verbal abuse. The husband denied that. It was the husband’s view, unsupported by any medical opinion, that the wife suffered post-natal depression. He gleaned that opinion from some wise people in his church. No evidence supported his theory. During the period that the husband thought that the wife was suffering from post-natal depression, it was the wife who was asserting that the husband was depressed. It was the husband who was seeking counselling and to use his words:
According to my Doctor (sic) and my Counsellor (sic), my “condition” had improved and I no longer had further concerns for my health and wellbeing.
All of that tends to suggest that there were problems in the relationship even if the husband thought that things had improved. It is significant therefore that psychologist Ms G whose evidence follows below, said that the husband acknowledged that he could have been a better listener and emotionally supportive of the wife during this period of time.
It is clear that the wife was struggling with two children one of whom was just born and the husband was aggressive.
The wife then gave evidence that when K was about four to six weeks old, she left K in the care of the husband whilst J was in childcare. She received a telephone call from the husband to come home because K would not settle and the husband was having a panic attack. The husband denied that allegation and in particular, denied that he was not willing to spend time with his children. He did not challenge the wife in cross-examination about this particular incident. Whilst it might sound innocuous enough, it was relevant to the question of whether or not it was the wife who was doing the bulk of the caring for the children. The husband maintained that it was his role to do that but I find that the wife’s version is more plausible for the reasons earlier articulated.
In August 2009, the police attended the parties’ home. The wife was lying down and heard yelling so she got up to see what was going on. She saw her mother on the telephone but the husband hung it up. The wife’s mother had called the police. The husband went to the door of the home to find a male police officer and a female police officer present. There was a dispute as to what then happened.
The husband put to the wife in cross-examination that he and she were boisterous and loud and enjoying themselves and the mother was asleep and woke up misunderstanding their boisterousness. The wife denied that. The husband pointed to the fact that the police report indicated that there was no recorded violence nor any concerns by the police for any party. Despite that statement on the police records, the wife insisted that she did complain to the police about violence having occurred.
The impression the husband created was that his mother-in-law had been asleep and had assumed the worst and called the police for no apparent reason. He said when the police arrived, he explained to them that the incident was a complete misunderstanding.
It was the wife’s evidence that the police suggested that she obtain an intervention order and the husband did not deny that. He put to the wife that she did not make a complaint nor seek the intervention order. She said that at that time she decided not to do it. There is some significance in this evidence. There seemed little doubt that the wife did nothing about her fear of the husband but the fact remains that there was a discussion with the police about the possibility of getting an intervention order. I find that occurred as described by the wife.
The wife’s mother said that it was the husband who abused her and that this went on for approximately a half an hour. She said she telephoned the police for help because the husband was frightening her. She otherwise corroborated the wife’s version. In his affidavit, the husband simply denied what the wife’s mother said.
The husband cross-examined the wife’s mother and asked if the problem was as she had described it, why she had not sought an intervention order. Her explanation was plausible. She said that she did not live near the husband at the time and did not think it was necessary. She corroborated the wife’s version that the police told them that they could get an intervention order.
In his cross-examination of the wife, the husband put to her that this was a lie she had made up as a convenient way of stopping his contact. He put to her that her account was false. The wife denied that.
Again for all of the reasons earlier indicated about the behaviour of the husband and the professional assessments of him, the evidence of the wife and her mother has a ring of reality about it. I accept their version.
In 2010, L was born. Upon bringing L home, the wife said the husband was not coping with the two older children and she decided that she needed to move to her mother’s with the children to remove herself from the stress. She said the stress was affecting L’s ability to thrive. She stayed with her mother for some days. Just after those days, she returned to the home but then the separation occurred. The wife described the husband reacting angrily to an incident involving what K did to L and the parties had an argument. She said he spat at her four times and told her to “fuck off” and leave the house. She said he threw pillows at her and stormed out of the bedroom. All of this was denied by the husband. He disputed the version of the incident that gave rise to the problem and described the situation as quite calm until the wife became indifferent towards L and that followed with a heated discussion. He said that he then went off to work and when he returned, he found a note from the wife stating that she needed some time to sought out her issues. This too was the subject of cross-examination by the husband. He put to her that she had been asked to take the two children to their rooms and she denied that.
In my view if, as alleged by the husband, the wife was indifferent to the care of L, why would he leave her and go off to work? That suggests that the wife’s version again is more plausible and I accept it.
The wife said that after the parties separated, the husband called her frequently. She had her parents screen her calls. She said when she did speak to the husband, he would beg for her to come back and when she refused, he became aggressive and started shouting at her. All of that was denied by the husband. He said that on a number of occasions when he was able to get through to the wife by telephone, the wife’s mother would come into the room and would tell her to hang up. He denied he was aggressive but he certainly told his mother-in-law to stop interfering because it was not helpful.

Ms V

Ms V is the wife’s mother. She relied upon an affidavit and was required for cross-examination.
Ms V is a retired nurse. She had a very significant role in the daily life of the wife. She said that she had a close relationship with her daughter and they confided regularly. When she was challenged about that by the husband, she said it was a good mother and daughter relationship. From the questioning, it was clear that the husband has little respect for Ms V. He put to her that she was overbearing with her daughter but she responded that her daughter made her own decisions.
The evidence of Ms V concerned a number of incidents during and after the parties’ relationship. Much of what she observed was written in a journal and that was attached to her affidavit.
Ms V noted telephone calls to her daughter in which the husband was abusive whilst at the same time, pleading for her to return. She said she was concerned for her daughter because the husband had blamed her for his dismissal from the church. Whilst this was the subject of dispute by the husband, it was consistent with the evidence of the wife. That is, Ms V was told by the wife of what was happening and she noted it. Much of what she thereafter recorded related to abusive behaviour by the husband. There is a strong resonance between that evidence and the evidence of Ms G who obtained a variety of concessions from the husband about his behaviour.
Ms V recorded her daughter’s distress at the husband’s behaviour and I take into account the logic of a mother being concerned for her daughter bearing in mind that there were then very young children in the household for whom the wife was caring.
A litany of events was described by Ms V all of which were met with simple denials by the husband in his responding affidavit. Having explained the process to the husband and in particular the need to cover simple denials with rebuttal evidence, the husband did not give the Court any serious version.
Ms V described her husband having applied to the Suburb W Magistrates’ Court for an intervention order. The husband did not challenge her about the reasons behind that event; indeed, he admitted that is what happened. I deal below with the events as described by the husband and the wife but I also return to the other significant part of Ms V’s evidence.
All of that tells me that the wife’s version was plausible. The evidence of the husband about those calls was not that he was endeavouring to make arrangements about the children. There was no other reason for him to be telephoning the wife and I accept that he was having difficulty accepting the separation. Again bearing in mind the assessment of professionals about the husband, I accept that he did behave in an aggressive way towards the wife.

Events after separation

In December 2010, the husband, the wife, the children and the wife’s parents went to X Town for a wedding of the wife’s cousin. It was not entirely clear why the husband was there bearing in mind the separation.
The dispute seemed to be about whether it was the agreement between the parties that they would all go to the wedding together as a family which was the husband’s version or that the husband was to be in X Town as the babysitter for the children while the wife went to the wedding which was the wife’s version. The wife denied the agreement asserted by the husband and said that the wedding reception was such that children had not been invited and therefore she asked the husband to care for the children on the Saturday night. She said the husband made clear he was not happy about the arrangement. The husband provided notes to the Court written by the wife in the days prior to the trip. One of those notes refers to the husband wearing something “smart” for the ceremony. Nothing in the note is inconsistent with the wife’s evidence that she anticipated the husband would care for the children during the reception. He described the fact that he was very annoyed with the wife’s action but was left with no choice but to go to X Town.
He said he was desperately wanting to spend time with the wife and had come all of the way just to be with her. That was curious having regard to the fact that there was no indication of a reconciliation.
It may have been that the nature of the relationship between the parties gave rise to the confusion but the wife was emphatic that it had never been her intention to do what the husband was saying was going to occur. She made a point in her affidavit of pointing out that she and the husband did not sleep in the same room at this wedding.
Even in the wedding itself, there was a dispute about what was said. The wife’s version was that the husband told her that she had broken her wedding vows in leaving him. He did not challenge the wife about that but he did cross-examine the wife’s mother who corroborated the wife’s version. He put to her that she could not possibly have heard the conversation. The wife’s mother disagreed.
Of the two versions of what happened that weekend, the wife’s is much more plausible.
The state of the relationship in December 2010 led the wife to contact psychotherapist Ms C for the purposes of assistance with the children as well as working out how to deal with the separation.
On 14 December 2010, according to the wife, the husband threatened to “bash” her father. The husband denied that assertion and said that he did not have a history of physical violence. Accepting that the incident earlier mentioned about the throwing of the pillows was not intended to be physical violence in the strict sense, I have accepted that otherwise, the husband was still intimidating, angry and threatening. That certainly came out in the evidence of Dr O and Ms G. Accepting that the husband did not have a history of physical violence, I accept that he did abuse the wife and threaten that he would bash her father as she alleged. Indeed, a subsequent event showed that the husband has no control over his anger and action particularly when it comes to the wife’s parents.

The McDonald’s restaurant incident

Only days later, an incident occurred in which both parties put their credit in issue.
The parties had agreed for the husband to have J and K for two nights. On the morning of the first of those nights, according to the wife, K woke with a temperature and was unwell wanting to go back to sleep. She said she rang the husband to inform him that K was unwell and it was better that he did not spend the proposed time with his father. She said she telephoned a second time at 12.30pm saying that K was still unwell. On both occasions, the wife said the husband told her that he was just as capable as she was of looking after K when he was sick. The husband denied emphatically that any such telephone conversations occurred. I gave leave to the wife to issue a subpoena to Optus who apparently were the telephone providers. I have earlier referred to the fact that the evidence shows the calls were made.
It was the husband’s version that the parties met that day at McDonalds. The wife was there with J. K was at his grandparents’ house. The wife said that upon arrival, the husband was unhappy about the absence of K and, having been told where the child was, said he would go to her parents’ home to pick up K and take him.
In an affidavit filed by the husband on 26 July 2012 which was drawn by his then lawyers, the husband said that the wife informed him that K did not seem to be in good health and that he should take only J. He then said:
However, during the changeover at McDonalds, I found that [K] was not present.
The obvious inference from the way that affidavit was drawn was that the husband knew that K was not well before he went to McDonalds. It was obvious that a conversation had taken place beforehand because he referred to that fact when he arrived at McDonalds and K was not present. There is no other explanation open to me. I find the husband lied about the telephone calls made by the wife in the morning.
After discussing the absence of K at McDonalds, the husband then went off to the wife’s parents’ place to collect K. The wife followed him there. What occurred then was also hotly contested but I have no doubt about the inappropriate behaviour of the husband.
For whatever reason, the wife’s parents would not allow the husband entry to their home. The parents were aware that the husband was on the way from McDonalds because the wife had telephoned them. Undeterred, the husband went round to the back of the house and entered it without lawful authorisation and saw K playing and took him.
The husband said that he then telephoned a police associate of his to tell him what had happened. The obvious inference from that was that he was worried that there may be police action as a result of his entering the home inappropriately.
Further to this incident, the husband went to a medical clinic where K was described as “completely healthy” and that he did not have a high temperature. No record of that was presented to the Court because the subpoenaed records of the clinic only related to the husband. When pressed, the husband agreed that he only spoke to a nurse there.
The husband’s whole version of events here was implausible. Again, I refer back to the description by Ms G and Dr O. The very things complained about by the wife and her mother fitted within the behavioural description by the experts.
Although this was a relatively innocuous event, the untruthfulness of the husband gives me cause for concern about his general credibility. That is particularly so where he has consistently maintained that he was not aggressive or angry during the relationship with the wife yet made those concessions to Ms G.

Wife’s father seeks intervention order

Arising out of the incident just mentioned, the wife’s father issued an application for an intervention order against the husband in the Suburb W Magistrates’ Court. The husband entered into an undertaking.
The husband relied on a version that he had given to the Court in an affidavit filed on 26 July 2012. In that, he said that he spoke to a lawyer acting for the wife’s father at the Court and told them that the application would be “easily refuted”. The conversation from the husband’s perspective, was along the lines that the lawyer offered an undertaking and he “naively agreed to their proposal”. He said in hindsight, he should have proceeded to defend the application.
The very nature of the conversation between the husband and the lawyer would seem to be consistent with his approach that he was right and there would be no alternative considered. Having regard to the fact that the husband entered the home without authorisation, took the child, checked with the police officer, and went to the medical clinic, I could well understand why the wife’s father might have issued an application for an intervention order. How the husband had a defence remains something of a mystery bearing in mind his own words that he intended to “refute” the claim. I do not know what the grounds of the complaint were because they were not led in evidence. However, it seems likely on the evidence that the husband was the aggressor. If it was a refutable incident, one would wonder why the husband would enter into an undertaking to behave himself. The husband’s explanation was that he was without a lawyer but having regard to the way he negotiated with the lawyer for the wife’s father, he could hardly be said to have been cowering with fear or at some disadvantage. All of that makes me conclude that the husband was the aggressor in the incident and the undertaking was not just an avoidance of the problem but rather, an admission of the fact. Even if the undertaking was given without admission, there is no other plausible explanation why he would do so unless he had done something wrong. I find that was what this incident was really all about.

The January 13-14 contact incident

At the same time that this incident was occurring, the husband and wife were arranging for J and K to spend time with him. This led to a dispute about the extent of the time.
On the wife’s version, an arrangement was made for the husband to have time and for the children to be returned at 5.30pm on 13 January. On the husband’s version, the arrangement was for a return on 14 January 2011.
A document, in the handwriting of the wife, did have 13 January written on it but has been altered to 14 January. The wife denied that she altered it and consistent with her position, she attended the McDonalds Restaurant on 13 January but of course, the husband did not attend. Counsel for the wife put to the husband that he changed the number. His answer was that he did not know who changed it. He was able to concede the changes that he did make but that was not one of them.
The curious feature about this particular period of time was that it was common ground between the parties that the wife would not allow the husband to have more than two nights with the children. On the wife’s version, the children were initially collected from her on 11 January. When asked about that, the husband could not remember. It was put to the husband that if that was accepted, why would the date have been 14 January which would have been three nights rather than two. The husband was emphatic that it was to be 14 January. Rather than indicate that there may have been some confusion about it, the husband said that this was just another example of the wife lying. He certainly did not challenge the wife about the incident and when asked why he did not, he indicated that he was not a lawyer. I had cautioned him about the fact that if he simply denied a particular incident and did not challenge the witness or give a possible explanation himself, it made the evidence of the person more believable.

Without some indication as to why the husband thought he was having more than two nights, the wife’s explanation was quite plausible. I accept that the wife did understand the return date was 13 January because it was two nights. Thus the husband acted unilaterally and overheld the children.
When the husband had not returned the children on 13 January 2011, the wife went the following day and obtained an interim intervention order. That afternoon, the police attended at the Suburb N property and the wife and her mother collected the children. All that the husband said about that particular day was that the wife’s version was correct that she did collect the children with the police. The interim intervention order became a final intervention order on 17 February 2011 for a period of twelve months.
On the day upon which the intervention order was finally made, a duty lawyer drew up an agreement between the parties about future contact arrangements. Even those were not to work successfully. According to the wife, dates and times were altered by the husband and those changes were often made at short notice. That gave rise to an argument between the parties in court about the wife making a conscious choice between her convenience and making the husband drive for an hour with the children through peak hour traffic. The wife was consistent in her answers in saying that she was thinking about the children and the importance of their routine. I accept her explanation.
In the period from February 2011 until August 2011, the husband’s time with the children was spasmodic. Whilst he had telephone conversations, his face to face time according to his diary was relatively limited. In March, April and May, he had the children on two occasions per month. In June he had them over two periods around 24 and 27 June but at that stage, he had not seen them since 15 May. Into July 2011, he only had the children on one day. There seemed to be relatively frequent telephone calls but the parties disagreed about why the husband did not see the children more. It was the husband’s version that the wife was difficult but I accept her version that he kept changing the dates and his proposals were not suitable to the wife.
All of that became problematic into August 2011.

Counselling for the wife

Between late 2010 and August 2011, the wife was attending upon Ms C for counselling. At no time up until August had the children been involved in that counselling. It would appear that they were generally cared for by their maternal grandmother when the wife was in the counselling sessions.

The aquarium visit May 2011

In May 2011, J was in pre-school. A visit was organised to the aquarium. J went on the bus and was met at the aquarium by the husband. According to the directress Ms Y, the husband, by arrangement, came to help. She said she noticed that on several occasions he went to do things separate with J from the group including getting her a drink of lemonade. In what seemed an innocuous event, he told Ms Y that J wanted to go to the toilet and she told him that it was fine and that she would take the child but his response was that he would do it. There was a queue of about six children to go into the female toilets and a shorter one for the male toilets. She said that two boys went in to the male toilets and so did the husband so she directed a female parent to go in as well.
Ms Y said that she did not think it was necessary for J to go into the male toilets with the husband. The husband’s evidence was that J was able to look after herself and she went into a cubicle whilst he stood outside.
As I indicated, this incident would seem innocuous except for what Ms Y was told prior to it happening. One of the employees of the pre-school, a Ms Z, had a confrontation with the husband before going into the aquarium. She told Ms Y that the husband’s questions made her uncomfortable such as to warrant the conversation being written down in notes. Ms Y said that Ms Z said that the husband made an inappropriate gesture. She said his hand was also inside J’s coat and on her skin and that action made Ms Z uncomfortable. It was this particular observation that gave rise to Ms Y being cautious about the toilet incident.
It was not until eight days later that the directress spoke to the wife and expressed her concern about the husband’s behaviour.
In cross-examination of Ms Y, the husband asked why she had been concerned. He asserted to her that there was nothing wrong with a father taking his child to the toilet. Her response was enlightening. She said that given what had been said by Ms Z earlier, together with his persistence in taking J to the male toilets, she felt that she was in a legal position as a director of the child care business where she had to be cautious.
It was not suggested that anything untoward happened in the toilet but the whole series of events set off a chain reaction.
As a consequence of the call from Ms Y, the wife spoke to Ms C who was then her counsellor. Ms C then invited the wife to bring in J.

Ms C

Ms C described herself as a psycho-analytic psychotherapist and counsellor. As a witness, she was bubbly and effusive always indicating a willingness to answer questions. The stated purpose for her being called was that she was the first person to whom J made “disclosures” of sexual abuse. I expressed some concern at the outset that the use of this word has slipped into the legal jargon when in reality, the statements are allegations. Whilst “disclosure” means an uncovering or exposure to view, its connation when used by professionals about children in sexual abuse cases is that there is an underlying sinister truth about the revelation. That is not always the case. The discussions between adults and children about such allegations have to be done by professionals very cautiously because of the risk of creating a confusion in the child’s message and meaning. In this case, the prospect of the contamination of the evidentiary status of the statement of J was a live issue.
Ms C said she had 28 years’ experience in her role. She had qualifications from a variety of places. When pressed, she stated she had a general and psychiatric nursing background, a diploma in counselling and had undertaken a variety of courses for which she paid for the attendances and from which, she received certificates.
At the outset of her evidence but not in her written documents, Ms C said she was not experienced in sexual abuse cases. She described herself throughout the oral part of her evidence as a therapist.
In a discursive explanation of her role, Ms C said she had worked for the Department of Human Services and schools in the management of children and adolescents but not as an employee. Her experience with sexual abuse victims was limited to one case. This hearing was also the first time in her 28 years that she had given evidence. She had written family or welfare reports but could not remember which courts they were for because she just simply gave them to the solicitors and heard nothing more about them. She was neither a professional forensic counsellor nor qualified under the Court’s regulations to do family reports.
What I found very disconcerting was that when pressed about her notes, Ms C said she had incorporated them in her reports. She said she had not been asked to bring anything other than what she thought were her notes in the form of her report. There were significant pieces of paper with child quotes on them along with drawings that were in storage. Whilst I accept that Ms C had not given evidence before and was not asked to bring everything, I found it very difficult to accept she did not see the importance of the comprehensive materials relating to the issues of the allegations.
In respect of her role as a therapist, I have considerable reservations. Ms C readily acknowledged that she was not an investigator but rather, there for her clients to listen to and encourage them to understand that they were “safe” and able to heard. It was the process of what she described as therapy about which I felt some disquiet. The therapy as Ms C described it was always consensual with the wife. It is helpful to look at Ms C’s role. She had initially had contact with the wife as her counsellor then took on J and acted as her therapist. She spoke to K and then began group family therapy. She saw no conflictual role notwithstanding she was acting as therapist for J who, she said, was telling her things in confidence which were not to be repeated to the wife. I have significant disquiet about whether Ms C knew what her professional boundaries were.
Albeit that Ms C thought she was helping the development of her client, she was, despite her denials, reinforcing a view that may have been unfounded from the outset.
In respect of a very young child, the absence of a reality testing can, as it did here, reaffirm in the child’s mind what the adult was wanting her to say. A constant reassurance that the child was believed meant that no careful examination was undertaken. Leading questions can and in this case did, corrupt the process of getting to the bottom of what the child was saying. Trained investigators in this case, presumably following police protocols, could not elicit what Ms C did. Ms C had no difficulty in obtaining extensive statements from J which were to the effect that the husband’s behaviour was inappropriate yet only days later, no similar clear assertions were made to any other professional bodies. Ms C explained that inconsistency by saying that J was feeling safe with her but was not safe with the police. She said the police informed her that J was fearful when the husband was mentioned. I observed J in three separate interviews on film and saw no such indication of fear. I certainly saw reluctance in the child to talk about subjects which she was decidedly uncomfortable about.
The wife had been concerned about J’s behaviour. In early 2011, she was expressing concern that the husband was using J to pass on adult information and that the child was returning from visits angry and distressed. No suggestion was raised by the wife about any sexual impropriety on the part of the husband.
In July 2011, according to Ms C, the wife told her that J was “sore and touching herself inappropriately”. The wife told the Court that before August 2011, her concern was that J was also picking balls of fluff, sucking her thumb and wetting her bed. She attributed those problems to abuse but was open to the possibility that the touching was caused by infection. It had been noticed at the child’s primary school at the very start of the child’s year but so too had the thumb sucking.
Indeed, in cross-examination, the wife said she did not have any suspicions before August 2011 but what activated her heightened concern was the statement by Ms Y. When Ms C saw the wife, she asked about similar concerns and the wife told her that the maternal grandmother Ms V was worried about sexual issues. Ms V told the Court she had not spoken to the wife about this before August 2011. When asked about whether she had concerns as expressed by the wife to Ms C, Ms V said she could not remember any. Her first recollections of a concern were after the excursion to the aquarium and that came entirely because of what the teacher said.
When the wife raised what the teacher had said with Ms C, it became apparent to her that J had mentioned something about her father washing her in the shower but also touching herself. Ms C then offered to see J.
Ms C told the Court that the fact that the wife initiated the request indicated to her that something inappropriate had occurred. She added that whilst she was trained in abuse, it was not her speciality. Needless to say, Ms C decided to see J.
On 16 August 2011, J attended. Not long after J went into the room to see Ms C, the child told Ms C that she had “secrets” from her mother. In response to a question of “what secrets?”, J replied “Daddy gives me nuggets and milk”. Days later, J was interviewed by a police officer to whom she said much the same sort of thing. It was clearly not sinister and the police officer did not see it that way.
Ms C said the conversation then went to things that J could do for herself. That led to the following:
[J] said, “Daddy washes me in the shower”. I asked, “Do you like Daddy washing you?”. She replied, “We have another secret. Daddy loves me in a different way to Mummy”. In inquired “How does Daddy love you?”. [J] became silent and awkward. I asked, “Would you like to draw me a picture?” She drew me a picture. I inquired, “What is this picture about?” [J] explained “This is Daddy and I loving each other in a special way”. I asked, “Tell me about the special love”. [J] replied, “Daddy touches me here” (and the child is then said to have pointed at her body). I inquired “Where?” [J] replied, “In my front”. I asked, “You mean the little hole in the front, your vagina?” “Yes”, she replied.
Four days later J was interviewed on a tape recording by the police. Nothing was mentioned about any of this until the police officer specifically put to the child that she had said things to Ms C. The child’s reaction was to be unresponsive. Ms C’s explanation for that lack of response was that J did talk about these things and the police officer “conveyed” he believed J had been abused but she was fearful and had not felt safe and comfortable with the police as she had been with her. That was certainly not apparent from watching J on the video nor was any such evidence called from the police officer.
Ms C described the mother as not surprised when she subsequently told her what the child had said. That is not consistent with the wife’s evidence. She said she was confused, in shock and hesitant. Because nothing had been suspicious until the excursion and the maternal grandmother had not raised questions of sexual impropriety, I find the wife was shocked rather than unsurprised.
The role of Ms C thereafter was quite forceful and in my view, inappropriate.
In the interview between Ms C and J, she asked the child whether she liked her father touching her and the child is said to have replied that it hurt and she cried. A series of other questions were then asked. One of the questions was what J’s father would do if the child told the secret. J was said to have replied that he would be very, very angry. Ms C said she asked whether or not he got angry very often and the child said:
Yes, sometimes he throws [K] at the wall.
On the day this discussion took place, the wife spoke with the maternal grandmother. According to the grandmother, all that the wife told her was that J had made some “disclosures” but did not elaborate on what they were. She said her daughter told her that she had to report the matter to the Department of Human Services and the police. It was the grandmother’s evidence that prior to 16 August 2011, none of the children had said that they were hurt by the husband.
In the days that followed, apart from attending upon the police, J was examined by medical practitioners at the AA Medical Centre. No indication was given of any trauma.
Despite the absence of any corroboration but putting the child through those investigations, at the request of Ms C, J was taken back for a second interview. Ms C reported that she asked J if she was scared to talk about her father with the police and the child replied that she was. Ms C had J draw a picture and asked her questions. Ms C said the child pointed to herself in the drawing and indicated where he father touched her. She was asked whether she wanted to tell her mother what had happened and whether she wanted Ms C to be present as well. The child replied that was what she wanted to do. At that point, the wife entered the room and J said that her father made her sore, that he put his finger in her bottom. When asked if she meant her bottom at the front or at the back, J was said by Ms C to have said “the back and front”. She asked what he did and J replied:
He puts his finger in and out.
According to Ms C the child then volunteered that he would do something to K and when Ms C asked what, the child said:
He put his finger into his bottom and squeezed his pee pee.
These improprieties were said to have occurred in the backseat of the car and also at the house where they had lived. J went on to tell Ms C that her father shouted, screamed and hit them and that he squeezed K’s penis until it bled.
Ms C then said that the wife told her that K said that his father hurt him by kicking including on his “pee pee”. That led to the wife bringing K into the room. Ms C said that she asked K if Daddy had hurt him and he nodded his head in the affirmative. She asked him whether he wanted to see his father and he shook his head in the negative.
Ms C said that K was, at that time, beginning to talk more however previously he had spoken very little. This was a precise communication by K in August 2011. A year later when K was 2¾ years of age, family consultant Mr T interviewed him and said that he “struggled” to clearly understand what K was attempting to say due to the “baby talk” way in which he communicated. Mr T said that K was a child in the early stages of language development. He said that K sat silently when most questions were posed and when asked to draw a picture just scribbled in circles and was unable to provide any information. That has to be seen in marked contrast to the evidence of Ms C. Mr T saw K not long before his third birthday and Ms C was referring to a period just on his second birthday.
Returning to the discussion between Ms C and J, counsel for the Independent Children’s Lawyer asked her whether she had inquired about the nature of the touching of J by the husband. Ms C’s response was that her only inquiry was as she had written. On two occasions, Ms C was asked about that subject. She seemed to brush away any suggestion that there was any doubt about what was said. Ms C did not say to the wife that penetration had occurred. If she understood J to be asserting to the contrary, she certainly did not say so. In J’s subsequent discussion with Ms C, there is a reference to the conduct of the husband as causing her hurt. This too is difficult to put into context because at that time, J had vaginal infections. Additionally, just what she meant by “hurt” is hard to know.

Ms V talks to Ms C

In her evidence by affidavit, Ms V referred to the wife telling her on the morning of 16 August 2011 of J revealing information whereupon J’s behaviour dramatically improved. This evidence was to convey that the only thing she knew about the counsellor was that she was aware of her daughter seeing one.
The husband asked Ms V who arranged the counselling and she replied that it “was arranged”. Whilst the questions and answers were somewhat confusing, I find that it was not Ms V but a friend in her church who make the connection. She was evasive about when she ultimately spoke to Ms C other than it was sometime in 2011. She was clear in saying that she did not speak to Ms C before the wife did and she thought there was a twelve month gap after the counselling began.
Nothing I heard would enable me to find that the introduction of Ms C was orchestrated by Ms V nor that she was directly involved in the counselling. To the extent that she may have paid for it, the point is irrelevant.
Ms V was questioned by Counsel for the Independent Children’s Lawyer about whether she had had a conversation with her daughter about sexual abuse before the allegations were first raised by J. She said that she had not. She was then evasive about what she told Ms C and particularly when she first had concerns. She maintained that her concerns arose after the Aquarium incident mentioned later.
Ms V was certainly looking back at the history of these various events with a bias. She took the view that the husband was the perpetrator of the allegations made by J and of the event that occurred to K. In her view, this was “incest”. She suspected the husband had penetrated his daughter.

As to how long the supervised time should continue, Mr T was unable to answer. My view is that that should be driven by the question of what resources are available.
Mr T was questioned at length by counsel for the wife particularly in relation to his view about whether J had been coached or coerced and he did not believe that he saw any signs of that. He conceded however that it was a difficult issue to determine particularly as the picture was clear that Ms C may very well have been encouraging answers that were not accurate. Mr T was asked why a child like J would say what she did. He said children often make such a statement and they offload what they thought was scary information to a family member or indeed a professional. He said there can be a sense of emotional relief for the child not so much that the statement was offloaded but that they were then explaining the dilemma to an adult who they thought was going to protect them. I find that that is what Ms C was doing. Mr T said that most maltreatment occurs from an adult that children know. He said that children can be troubled about the fact that having offloaded this information, they feel they will get someone into trouble for what they have said. That leads to retractions and that may very well have accounted for why J said what she did to him when he prepared his 2012 report.
Mr T thought it was unusual for a child like J to make the assertions she did on three separate occasions prior to the retraction but that may very well have been because of the constant bombardment of interviews that the child was undergoing.
Mr T had little doubt that the rationale for making the order for supervised time in this case was to stop inappropriate discussion with the child. I find that there is every reason to be concerned that the husband could not contain himself and whilst he says what he does about the wife, his mother-in-law and other professionals, I do not accept his explanation that he would not say things to the children. He does not have the ability to contain himself and that was evident not only in the expressions of his views to the professionals but even in the court itself.
In my view, this is a case where significant counselling needs to take place and that the time at which the contact should begin under a supervised arrangement will depend entirely upon whether the children are ready for that exposure.

The evidence of Dr EE

Only just over three weeks after the report of Mr T was released, Young J ordered another which was this time prepared by Dr EE. This report was requested as a result of “apparent disclosures” made by J and K to Ms C immediately before the hearing before Young J.
Dr EE interviewed Ms C by telephone on two occasions. She confirmed that she was not a registered psychologist as had been the picture portrayed in the orders of the Court but rather a generalist counsellor of some 28 years’ experience who worked primarily with children, couples and families as she indeed subsequently told the Court in her oral evidence. She acknowledged to Dr EE that she had not completed specialist training in the forensic interviewing of children.
Ms C told Dr EE that she spoke to J and K on 14 August 2012 in a joint session and that J disclosed ongoing physical and sexual abuse during periods of time where they had seen their father at the hospital and at the shops. One of those included squeezing K’s penis.
Ms C was of the view that the children disclosed seeing their father regularly on weekends and during the week and that that had been facilitated by the wife.
There is no evidence to support the conclusion of Ms C that the children were indeed seeing their father at that time. All of the evidence supports the conclusion that the children had seen the family consultant Mr T and not otherwise.
When Dr EE asked why the wife would undertake such secretive activities, Ms C speculated that she was doing it whilst at the same time being compelled by her mother to take the court action.
As has been indicated in my synopsis of the evidence of Ms C, she told Dr EE that she had consulted with the children together and on occasion in the company of the wife. She did not believe her questioning was leading and she confirmed the initial statements by J were made in the very first session with her.
Dr EE noted that Ms C impressed as convinced of everything that had been relayed to her and was not open to any possibility that the children may have been untruthful, non-literal or that their statements had been misinterpreted.
It was clear from the evidence that Dr EE viewed Ms C with suspicion. He was concerned about her professional approach to things and as I am satisfied, she was certainly acting in a very destructive way. She acknowledged to Dr EE that the Department of Human Services had rejected her overtures and J’s school had asked her to stop contacting staff.
Dr EE interviewed J but little other than despondency about her relationship with her father was evident.
In relation to what the Court should do about the evidence of Ms C, Dr EE noted that it was important that the evidence of children be corroborated from other sources of information. He took the view that the children were unlikely to have been seeing their father as had been reported to Ms C. He said that children can be highly suggestible particularly those of a young age and that the way in which information was elicited could be crucial to the terms of the reliability of it. I find that happened in the case of Ms C.
Dr EE noted that questions needed to be asked in a very specific way without confirming, leading or otherwise reinforcing the responses given by the child. Ms C did not do that.
Professionals he said, needed to remain objective and should endeavour to test the evidence against other sources without bias. Ms C did not do that.
Endeavours should be made according to Dr EE to ensure that other sources of bias such as persons sitting in on the interviews with children, should be minimised. Ms C did not do that.
Dr EE said that it was important that the information provided by the children was not inadvertently rewarded such as to encourage exaggerated accounts. Ms C did not do that.
The evidence of Dr EE was extremely helpful.

Submissions

I have already referred to the final positions of the parties and the Independent Children’s Lawyer. In respect of those orders, the Independent Children’s Lawyer submitted that the opinion of Dr O tempered the whole trial and has similarly, tempered the parties’ relationship. He described that opinion as setting the ground rules. He submitted that notwithstanding the nature of that relationship, it was not sufficient to preclude the husband having a relationship with the children.
In relation to the wife and her mother, counsel for the Independent Children’s Lawyer raised a number of questions about inconsistencies in the evidence. I agree there are inconsistencies but the for the reasons set out above, I am not convinced that they are that clear that I can making findings that this was a conspiracy as alleged by the husband.
The submission of the wife was that there was still an unacceptable risk and her position had not changed. Counsel for the wife suggested that the Court should accept the evidence of Ms C. For the reasons set out above, I emphatically reject that submission.
The husband in a very lengthy submission much of which was cut and pasted from a document apparently prepared by his counsel in January 2013, submitted that the wife knew that the false allegations about him were made by her mother to Ms C. He submitted that in turn, that led to the wife knowingly make a false notice of child abuse in the Court. He described this as the wife using the children and said that that was a despicable thing. For reasons which I have set out, that submission is worrying for its lack of insight. I reject the allegation of the husband.
The husband submitted that if no unacceptable risk was found, orders should be made for his primary position. Because of the absence of any meaningful relationship between the husband and the children, that submission had no merit. ‘
Throughout his submission, the husband addressed the sexual abuse issue but did not address the emotional, psychological and even the physical risk elements.
The husband referred to the Full Court decision in Johnson and Page [2007] FamCA 1235 and in particular, the following quote is pertinent:
68.In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1The decisive issue is and always remains the best interests of that child.
All other issues are subservient.
2 The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6The onus of proof in reaching that conclusion is the ordinary civil standard.
7But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
In that case, the Full Court thought it useful to refer to the decision of the High Court of Australia in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 where their Honours observed the ordinary standard of proof required of a party who bears the onus in civil litigation is the balance of probabilities. The Court then said:
The strength of the evidence necessary to establish a fact or facts on the balance of probability may vary according to the nature of what it is sought to prove.
Applying the principle set out, and being mindful that the issue is what is best for these children, I can find there is no risk of harm or sexual abuse to these children but I do find there is a significant risk of emotional or psychological harm because of the husband’s behaviour and attitude. I find the wife has proved that allegation. I therefore reject the husband’s proposal for his parenting primary position.
The husband’s submission went on to deal with the evidence of the expert. He submitted, inter alia, the approach, credentials and experience of the witnesses who supported him were acceptable but not the others. I reject that submission. As I pointed out in discussion, it is fine to suggest Dr H but not Ms Q but I would not reject her evidence on the basis of her approach, her credentials or indeed, her experience.
In his submission concerning Ms G, the husband ignored the evidence elicited in cross-examination about his own concessions concerning his own conduct.
Concerning Dr EE who was not called to give evidence, the husband submitted that his evidence of concern about Ms C should be preferred. Whilst I accept that position, it must be clear that Ms C’s evidence in totality is the reason why I do not accept the foundations for what she was doing giving rise to the isolation of the husband from his children.
The husband’s position was that all of the problems came from Ms C’s evidence. He repeated his allegation that Ms C conducted an investigation after the maternal grandmother met her. I am not satisfied that is chronologically or factually correct. Like much of his presentation, the husband’s submission was that much of the evidence was based on what he called colluded and manufactured evidence, erroneous assumptions, flawed methodologies and “the real risk of bias”. That submission has no merit.
Some of his submission was repetitive plagiarising what his counsel had drawn from the untested evidence in chief. It was clear that these submissions were not well founded because they were the husband’s stream of consciousness rather than a critical analysis of the evidence.
In his conclusion, the husband submitted there were real risks to the children in having their maternal grandmother around them and it was his view that the wife had been manipulated. There is insufficient evidence to support that submission.

Legal aspects: Parenting

In s 60B of the Act, the objects and principles guiding any parenting determination are clearly set out. Overriding considerations however affect those objects and principles. The overriding consideration is always the best interests of the children.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court must regard the best interests of the children as the paramount consideration. To determine what is in those best interests, the Court must consider the matters set out in s 60CC. Before contemplating those matters, the Court has to deal with the question of parental responsibility.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for them. That presumption however is rebutted if the Court is satisfied on reasonable grounds that a parent has engaged in abuse of the children or family violence. I have no hesitation in finding that the husband has engaged in family violence for the reasons earlier set out. I rely upon those findings. Accordingly, the presumption is rebutted.
Even if that were not so on the basis of family violence, the Court has a discretion to rebut the presumption on the basis that it is not in the interests of the children for their parents to have equal shared parental responsibility. A guide to how that should be approach can be found in s 65DAC which provides that if an order is made by the Court for equal shared parental responsibility, the exercise of that parental responsibility involves making a decision about major long term issues concerning the children. The provision means that the order is taken to require that decision or those decisions be made jointly by those persons. It is taken to require each of the persons to consult with the other about the decision and make a genuine effort to come to a joint decision about the issue. In this trial, the husband called the wife a liar and in the meeting with the first family consultant, he indicated that she was being controlled and influenced by her mother. It is clear that the wife fears the husband. There is a foundation for that fear as indicated in the evidence of Ms G and Dr O. I accept that the major responsibility for the breakdown in communication lies with the husband and there is little prospect of that changing having regard to his current views.
To add to those matters, it will also be seen that until the beginning of the hearing, the husband’s position had been to seek contact yet in the hearing itself, he altered that to wanting the children to reside with him even though he expressed the view that he thought it would not happen. His evidence about how he would care for the children was lacking. All of that indicates that he has little respect for the wife and would be unlikely to negotiate with her in the future. Thus, equal shared parental responsibility would not work and therefore it could not be in the best interests of the children for the parents to have that responsibility.
The presumption is accordingly rebutted.
In relation to the best interests principles generally, s 60CC sets out how they are to be determined. That section divides the considerations into primary and additional ones.
There is no current relationship between the husband and the children let alone a meaningful one. Some exception to that observation can be seen in the way that J greeted her father at the Family Consultant meeting in the middle of 2012. The Family Consultant explained that in part by saying that children sometimes desire a relationship no matter how bad things have been. There is little doubt that the husband has no relationship with K. The child smiled at him and hugged him but the telling words came from the husband that this was the first time he had heard his son speak. L has had no opportunity to develop any relationship at all. All of the development of a meaningful relationship is ahead of the husband and the children.
I have no similar concerns about the wife. It was not suggested that she does not have the basis for a loving and secure relationship with the children. That was seen by the family consultant and even though there may have been some consternation by the child care centre, these children are otherwise attached to her. She is their primary attachment figure and they benefit from that relationship.
Section 60CC also requires the Court as a primary consideration, to consider ways in which the children can be protected from being exposed to the psychological harm of abuse, neglect or family violence. This is really what this case was all about. I am not satisfied that the husband has perpetrated sexual abuse on either J or K but they have witnessed the conflictual relationship and that accounts for at least J’s fear that her father has and in the future, might, hurt her. I accept the wife’s evidence of the problems that the J has had when contact with the husband was imminent. It is unsurprising that the wife would not be enthused about the husband or positively endeavour to persuade the children that there is no basis for any fear. That may have accounted for the dreams, anger and bed-wetting.
S 60CC requires the Court to consider additional considerations. Whilst J wanted to see her father, I accept that she is too young really to understand what this is all about. The same must be said of the other two children having regard to the evidence of Mr T. There is no evidence that would satisfy me that I should give any weight to the children’s views having regard to age and level of maturity.
I have already set out the nature of the relationship between the children and the parents. There is an entitlement of the children under s 60B to know and have a relationship with their father but it must be in circumstances where they are protected and secure. There is little alternative than a contact centre but even there, the younger two will have little understanding of what they are doing. I think that some form of reintroduction counselling in this case is important before the normal relationship development begins. Notwithstanding the husband’s optimism, I feel that this will be a slow process having regard to the evidence of Mr T that the two younger children did not know anything much, if at all, about him.
The Husband was critical about the wife’s view of him and what he sees is her being manipulated by her mother. That is an assertion that the wife has failed to facilitate the children’s relationship with him. I reject that. The wife’s role in all of this was one of bewilderment. I reject the evidence of Ms C that the wife was not shocked or surprised about J’s sexual abuse allegation. I find that after that discussion, Ms C took control and the wife was almost powerless to stop her. The wife’s evidence was that she could not agree to contact but after these findings are made public I consider that she will be positive about promoting a relationship because it is in the children’s best interests and because she will know that they (and she) are protected from the controlling influence of the husband at least for the ensuing two year period that I intend to make supervised. Whilst I am not convinced at all that the husband accepts his role in the breakdown of the relationship, he would do well to contemplate the problems he has created.

Having regard to the nature of the relationship between the mother and the children and the complete absence of any plausible evidence about how he could care for the children, the husband’s proposal for the children to reside with him cannot be accepted.
Just what sort of time the husband can have with these children will depend in part upon resources. In my view, a very experienced counsellor needs to commence preparing these three children for a life after this mess so that they can commence to get to know him in a secure environment. That environment will also give the wife security of knowing that he cannot manipulate the children to speed up the process.
I have accepted the wife’s evidence about the modest role in the household that the husband played prior to separation and as such, another reason why the time needs to be supervised is that I am unsure whether the husband can care for the children even for a short period. There was an assumption that as soon as this was all over, Ms E would become an instrumental part of the children’s life through her relationship with the husband. I am unsure whether I could draw that conclusion because of Ms E’s dilemmas with the Department of Human Services but also the fact that she has no relationship with the children. Further, she has no relationship with the wife such that the wife could trust her to provide in areas where the husband may be lacking.
Despite some evidence about the parenting incapacity of the wife and in particular, the husband’s assertion about it, I find the wife has the capacity to care for the children and I have no concerns about her ability to provide for the emotional and intellectual needs of them.
The attitude to the children and to the responsibilities of parenthood demonstrated by the husband leaves doubt in my mind about whether he was intent on proving his innocence of the allegations levelled against him or whether he is really a focussed parent. His approach to the proceedings about seeking that the children live with him did him little credit. In my view, the mother is a much more child-focussed parent.
I have already made findings in relation to family violence or family violence orders. I shall not repeat them save that there are two significant things that convince me that the husband needs to be cautious about starting again in developing a relationship with his children. First, I have the professional views of Dr O, Dr H and Ms G. Whilst to some extent, those matters may be related to these frustrating proceedings, it is important to bear in mind that all of the authorities and professionals were simply doing their jobs. I would not criticise anyone other than Ms C. The husband’s portrayal of himself as a loving and caring individual who was also a minister of religion does not sit comfortably with the evidence. There is therefore a justification for the wife to be apprehensive about the future relationship between the husband and the children if he continues to harbor complaint about what has happened to him. It may be that all of this started with his aggressive behaviour. The second is that the husband’s own behaviour towards the wife’s parents on the day that he improperly entered their house and took K indicates that the professionals’ view that he is controlling was right. He needs to think about the impact he has on others if he is to expect a positive response from the wife about his children having a meaningful relationship with him.
This is a case in which the children need to settle into a routine and in my view, it would be preferable in this case to make a final order but the build- up must, of necessity be slow.
Accordingly, the orders set out at the start of these reasons are in the child’s best interests.

Property

I have already briefly referred to the fact that there was a property dispute between the parties.
By her application, the wife initially sought that she transfer her interest in M Street, Suburb N to the husband. As I understand it, the house is only in the husband’s name although the encumbering mortgage is joint.
To add to the confusion, it was common ground that a caveat had been lodged by the husband’s former solicitors pursuant to the charge that he had signed for legal fees he had incurred.
Disclosure by the husband was woefully inadequate disclosure but equally inadequate was the pursuit by the wife prior to trial of financial issues.
In his affidavit filed January 2013, the husband said that he was a sole director and shareholder of a company FF Pty Ltd. He said the “business” as distinct from its apparent owner, the company, had “zero net value” and there were debts to suppliers of $51,000. It transpired that this company had been incorporated in January 2012 by the husband. Until that time, the husband had conducted the business initially on a partnership basis and then having regard to the breakdown of that partnership, as a sole trader. No documents were produced to the Court about any of this. What was perplexing to the Court and no doubt frustrating for the wife was that at some unstated time in 2013, Ms E was added as a director of the company. Subsequent to that, the husband resigned his directorship of the company. The original sole trader business owed its supplier and somehow, no doubt with the advice of his accountant, the husband arranged for the new company to take responsibility for the supplier’s debt which was periodically reduced from revenue but somehow deducted as a company expense. This supplier kept providing services and, to overcome the ongoing indebtedness, the husband transferred to the supplier, all of the shares in the company. No documents were produced as to the consideration nor how the transfer affected (if at all) the company’s balance sheet.
The husband was challenged about whether the shares were held in trust as security for debt to the supplier or simply transferred. He insisted he had no control any longer. The role of Ms E was also hardly relevant but the husband maintained that he was about to sign a bankruptcy petition so he wanted to protect the supplier as well as the fledgling business. He did not adequately, if at all, explain why no documents had been produced but the value of the company’s shares has now become irrelevant because the husband has no legal or apparent equitable interest in them. No application to set aside any such transactions was also made.
The parties began their financial life as I have earlier indicated with little. Whilst the husband had some shares, they appear to have financed the parties’ honeymoon and whilst the husband was emphatic in denying the wife’s version, the fact that he sold the shares over a period of time and the money went into the household budget indicates that he was comfortable with the wife’s role at that time in pursuing her studies as part of the parties’ future prospects together. As it turned out, the wife fell pregnant prior to the completion of her studies. In any event, both parties had modest or limited income so the exact detail of where the share money went is largely unstated. I find that it certainly did not end up in any of the assets of the parties.
The real property at Suburb N was purchased just two months prior to the marriage for $210,000 and the mortgage funds totalled $170,000. The deposit came from the $40,000 loan from the husband’s father.
Both husband and wife agreed that the property was purchased as their home. Although it was not argued, it was clear from the evidence that the husband treated the property as jointly owned. Both parties agreed the loan and the Certificate of Title were in the husband’s name alone predominantly because the wife was studying at the time and she had no independent income. On any view of the evidence, the wife had an equitable interest whether by way of a constructive trust or perhaps, having regard to the wife’s undisputed evidence, an express trust. I am satisfied that the wife has such an equitable interest.
Soon after the marriage, the parties started their family and the wife became a full-time homemaker and parent. Subsequent to the birth of J, the relationship was unsettled and the parties disagreed about what role each fulfilled. I find the wife was the primary homemaker and parent and the husband was the major financial provider for some time.
The husband has outstanding obligations in relation to child support in the sum of approximately $5800. That however arises out of a reassessment only recently undertaken. With the husband’s bankruptcy threat being treated as real, the prospect of recovery of that outstanding child support would not seem to be high. The wife also has debts but they are largely as a result of what she has incurred after separation but by the same token, she has managed to save a modest sum in the bank. She has a Commsec loan. The husband too has debts including those that I have mentioned relating to his former lawyers. The husband also deposed to a variety of debts from credit cards. He produced no documents to show what they were for. The wife did not admit that they were anything to do with her save that she produced a credit card statement that showed a debt at the time of separation. I am unable to find that the debt related to anything specific. I do not know whether or not the husband had the capacity to pay it after separation as he presumably would have had if the parties had not separated. In addition, the husband seems to have retained all of the income from the business that commenced as a partnership with an independent person. What happened to that money remains a mystery. The looming bankruptcy of the husband also clouds the issue because it may well be that the debt will be written off as unrecoverable. If that were to happen, the wife would be prejudiced if some money went to the husband and it was not attributed to the debt. Similarly, if the husband paid the one acknowledged credit card, I do not know whether it would create a preference as between the creditors. Thus, so little information was provided particularly by the husband that I could not say that it was just and equitable to take those debts or any part of them, into account.
Again, because the husband urged me to take his bankruptcy threat seriously, the debt position is largely academic.
In reality therefore, neither party has much to show for their relationship. In the recent two years, the wife has been the sole physical provider for the children because of the injunctive orders against the husband.
Each party has accrued superannuation. In the husband’s case it is $22,000 and in the wife’s case, $4000.
The determination of this case is governed by the provisions of Part VIII of the Act. Section 79(2) prescribes that a Court should not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make that order.
The approach to this was examined by the High Court of Australia in Stanford v Stanford (2012) 87 ALJR 74; 293 ALR 70 which decision was recently considered by the Full Court of this Court in Bevan & Bevan [2013] FamCAFC 116. The attention of the practitioners for both parties was drawn to these decisions.
Section 79(2) amounts to a requirement that the Court’s order must be just and equitable (see Woollams & Woollams (2004) FLC 93-195 and Teal v Teal [2010] FamCAFC 120). As the Full Court said in Bevan (supra), the just and equitable requirement permeates the entire process. In Mallet v Mallet (1984) 156 CLR 605 at 647 Dawson J described this consideration as the “overriding requirement”: Thus, a Court does not need to undertake a clinical mathematical evaluation but rather contemplate all of the contributions and ensure that whatever order is made, it is just and equitable. In this case, the parties have modest assets to contemplate.
In Mallet (supra), Gibbs CJ described s 79 as conferring a very wide discretion to make such order as it thinks fit but at some point, the assessment exercise has to move from the qualitative to the quantitative (see Coleman J’s remarks in Steinbrenner [2008] FamCAFC 193).
The starting point is to consider the three “fundamental propositions” mentioned in Stanford:
1.Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
It is clear in this case that it is just and equitable to make an order because despite the house being registered in the husband’s name, it was always intended from their joint perspective to be jointly owned. It is therefore just and equitable to make an order.
An assessment of the various contributions of both parties requires a consideration of the provisions of s 79 of the Act. That statutory requirement sets out that the Court must consider:
·the parties’ financial contributions to the acquisition, conservation or improvement of any of the property of either of them;
·the parties’ other contributions to the acquisition, conservation or improvement of any of the property of either of them;
·the parties’ contribution made to the welfare of the family;
·the effect of any proposed order upon the earning capacity of either party;
·the matters referred to in subsection 75(2) so far as they are relevant;
·any other order made under the Act affecting a party to the marriage or a child of the marriage; and
·any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Having regard to the duration of the marriage and the joint general endeavours of the parties and the way they treated their home as joint property, I see no reason to deal with this deliberation other than on a global basis. Indeed, in their evidence, that is the way both parties sought to approach the matter taking into account the various contributions.
It having been found that it is just and equitable to alter the interests of the parties in their property, then by reference to s 79(4) of the Act, the findings require the alteration of property interests to significantly favour the wife.
The mortgage on the house which includes a car loan currently stands at $225,000. The equity therefore is limited to about $75,000 and $42,500 if the father’s debt is paid out. The solicitor’s caveat supported by the charge must be ignored as it is personal to the husband and as I have indicated, there are various debts that are unsubstantiated.
Section 79(4) of the Act requires an assessment of the various legislative components. I find the husband has made the greater financial contribution but the wife has made the greater non-financial contribution through her role as a homemaker and parent.
Section 79(4) requires a consideration of the matters in s 75(2) insofar as they are relevant. For that purpose, I make the following findings:
·    each party has health and age on their side from the perspective of earning capacity;
·    the husband has much greater earning capacity than the wife because he does not have the obligations towards the care of the children;
·    the wife has tertiary skills that she can apply in the future but at this time, she is restricted by virtue of having the very young children;
·    the husband pays child support and on my view findings, will continue to do so into the future;
·    the wife has the full-time care of the children and wishes to maintain that future role;
·    the wife does not have much prospect of getting anything out of the property settlement because of her own indebtedness to her parents, HECS and the Commsec loan let alone legal fees;
·    the husband has the capacity if not current control to run a business which, albeit limited, has as he acknowledged, potential even if the control is currently beyond him;
·    neither party has as yet repartnered although I suspect that the husband will commence his relationship with Ms E in the foreseeable future.
On any view, the wife’s economic position is much weaker than the husband. Because the wife went out of the workforce for family reasons, her superannuation is also much smaller than the husband. Neither party sought a superannuation splitting order but the evidence confirms that the husband has amassed a sum which will continue to grow so long as he remains in employment as he indicates an intention to do. His superannuation entitlements will not be affected by any bankruptcy.
The wife’s superannuation will not grow whilst she remains out of the workforce. Both parties contributed to the overall financial position. In the husband’s case he worked and contributed to his superannuation through his salary and at the same time, the wife was fulfilling a homemaker and parent role. The wife should not be disadvantaged by virtue of the fact that the husband fulfilled the economic role and contributed to his superannuation.
In my view, whilst the husband and wife have made contributions which are largely equal up until separation but favour the wife since that time. The factors in s 79(4)(e) require a significant adjustment in the wife’s favour particularly having regard to the minimal amount of equity that the parties have and the assets that are available. Leaving aside the fact that the husband has the superannuation interest which will continue to grow and which can therefore be of little value to the wife at this stage and the fact that he has some potential in the future beyond bankruptcy to run the business that he has, this is a case where there is a significant reason to make an adjustment in favour of the wife. In my view, the wife’s entitlement overall to the equity in the house after the payment of the mortgage and the father’s debt should be fixed at 100 per cent.
It is now apparent that the husband cannot pay that. The house should be immediately sold and the net proceeds paid to the wife. The net proceeds in that case will be the gross proceeds less the sale costs, commissions and the fixed mortgage and the $32,489. If the husband’s former solicitors refuse to remove the caveat, an application can be made to this Court with which they should be served to show cause why they have any entitlement because I find the husband has no entitlement to any interest in the property.
Accordingly, I make orders as indicated at the commencement of these reasons.

I certify that the preceding Three Hundred and Sixty Four (364) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 November 2013.

Associate:

Date: 1 November 2013

[2013] FamCA 861

1 November 2013

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Property Law

Legal Concepts

Costs

Remedies

Injunction

Procedural Fairness

Statutory Construction

Res Judicata