WELTON & WELTON
[2017] FCCA 3149
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WELTON & WELTON | [2017] FCCA 3149 |
| Catchwords: FAMILY LAW – Property – Modest asset pool – Adjustment for the primary carer for the children – contributions and future needs. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 79, 75(2) |
| Cases cited: Stott & Holgar & Anor [2017] FamCAFC 152 Harridge & Anor & Harridge [2010] FamCA 445 Stanford v Standford [2012] HCA 52 In the Marriage of Hickey [2003] FamCA 395 |
| Applicant: | MS WELTON |
| Respondent: | MR WELTON |
| File Number: | MLC 10479 of 2016 |
| Judgment of: | Judge Williams |
| Hearing dates: | 6 – 8 September 2017 & 17 November 2017 |
| Date of Last Submission: | 17 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barbayannis |
| Solicitors for the Applicant: | Tisher Liner FC Law |
| The Respondent: | In Person |
| Solicitors for the Independent Children’s Lawyers: | Victoria Legal Aid |
| Counsel for the Independent Children’s Lawyers: | Mr Ambrose |
ORDERS
Parenting
The wife have sole parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2010 (“the children”), and in doing so, the wife will keep the husband advised of any significant issues relating to the children
The children live with the wife.
The children communicate with the husband by telephone each Tuesday from 7 PM until 7:30 PM, with the husband to initiate the call to the wife’s landline telephone and the wife to ensure the children are available to take the call. The wife shall otherwise facilitate the children telephoning the husband at any reasonable time they express a wish to do so.
The wife immediately advise the husband of any serious medical issue relating to the children.
For the purpose of the husband’s attendance at (omitted) or any other treating psychiatrist or psychologist the husband is at liberty to provide copies of the following documents:
(i)the psychiatric assessment of the husband by Dr M dated 23 August 2017;
(ii)the family report of Ms S, dated 1 September 2017 (“the family report”);
(iii)the discharge summary from (omitted) ((omitted) hospital) filed with the Federal Circuit Court of Australia on 8 August 2017 (28 pages);
(iv)the letter from (omitted) psychology, to the Independent Children’s Lawyers dated 19 August 2017;
(v)a copy of these final orders and reasons for judgement
The parties do all acts and things that may be required to facilitate the children spending supervised time with the husband at (omitted) family relationship centre (“the Contact Centre”), or such other professional supervision service as may be agreed, for a period of two hours at times nominated by the Contact Centre, on or as close to the following dates as can be accommodated by the Contact Centre:
(i)(omitted) each year (the child X’s birthday)
(ii)(omitted) each year (the child Y’s birthday)
(iii)Easter Sunday
(iv)the first weekend in July
(v)Father’s Day; and
(vi)Christmas Day
For the purposes of time at the Contact Centre:
(i)the husband be solely responsible for the contact centre costs; and
(ii)the parties provide copies of the final parenting orders to the contact centre
The wife is at liberty to:
(i)provide a copy of these orders to any school the children attend; and
(ii)provide a copy of the family report to any allied health professional upon who either of the children attend;
The husband be restrained from abusing, belittling, criticising or denigrating the wife directly to, or in the presence of the children or from permitting any other person to do so, and from discussing these proceedings, or any aspect of them with the children.
THE COURT DECLARES THAT:
Pursuant to ss.7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the respondent father to enable the children of the relationship X born (omitted) 2007 and Y born (omitted) 2010 (“the children”) to obtain an Australian Passport to travel internationally, the Court makes the following orders:
AND THE COURT FURTHER ORDERS THAT:
The mother of the children X born (omitted) 2007 and Y born (omitted) 2010 (“the children”) be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the respondent father.
Property
That within 60 days of the date of these Orders (“the date”), the Husband do all acts and things and sign all necessary documents to transfer his interest in the property situate at Property A in the State of Victoria otherwise known as Certificate of Title Volume (omitted) Folio (omitted) (“the Property A property”) to the Wife, at the Wife’s expense (“the transfer”).
That contemporaneously with the transfer, the Wife:
(a)do all acts and things to discharge or refinance the mortgage/s to the (omitted) Bank number (omitted) secured against the Property A property (“the mortgage”) into her sole name and indemnify the Husband in relation to this liability; and
(b)Pay the Husband the sum of $117,491.
That in the event the Wife is unable to refinance the mortgage by the date, the parties forthwith do all acts and things and sign all necessary documents to place the Property A property on the market for sale on such terms as may be agreed (“the sale”), with the proceeds of sale to be distributed at settlement of the sale as follows:
(a)first, to meet all costs, commissions and expenses associated with the sale;
(b)secondly, to discharge the mortgage and any other encumbrance against the Property A property;
(c)thirdly, the sum of $117,491 to the Husband (“the payment”); and
(d)fourthly, the balance to the Wife.
That the parties be granted liberty to apply to the Court with respect to the sale as may become necessary in order to give effect to these Orders.
Pending the transfer or completion of the sale herein:
(a)The Wife have sole right to occupy the Property A property and during such right of occupation, the Wife meet all repayments pursuant to the mortgage as and when they fall due;
(b)The Wife pay all rates, utilities and outgoings associated with the Property A property as and when they fall due;
(c)The parties hold their respective interests in the Property A property upon trust pursuant to these Orders;
(d)Neither party sell, transfer, further encumber or otherwise deal with their respective interests in the Property A property without the prior written consent of the other party other than for the purpose of complying with these Orders.
In default of the parties or either of them doing all acts and things and executing all such documents as may be necessary to give effect to these Orders within the timeframe set out in these Orders, a Registrar of the Family Court of Australia be appointed pursuant to s106A of the Act to execute all documents and to do all acts and things necessary to give validity and operation to these Orders.
For the purpose of the payment to the Husband, in the event that the Husband fails to attend settlement the Wife is at liberty to facilitate the payment being deposited directly into the Husband’s personal bank account.
That having been accorded procedural fairness in relation to the making of these Orders, Orders 23 and 24 are binding on (omitted) Super (“the Trustee”) as Trustee of (omitted) Super (“the Fund”).
In accordance with Section 90MT (1)(a) of the Family Law Act 1975 (“the Act”), wherever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of Ms Welton from her interest in the Fund (member number (omitted)), Ms Welton is entitled to be paid (by the Trustee of the Fund) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $71,867 and there is a corresponding reduction in the entitlement Ms Welton would have had but for these Orders.
That Order 23 has effect from the operative time, which is seven days from the date of service of sealed Court Orders upon the Trustee.
That each party and the Trustee has liberty to apply on not less than three (3) business days’ notice, in respect to the implementation of the super splitting orders.
That the Husband retain all of his right, title and interest in the Holden (omitted) motor vehicle.
That the Husband retain all of his right, title and interest in (omitted) (“(omitted)”) to the exclusion of the Wife and indemnify the Wife in relation to any liability associated with (omitted).
That the Wife retain all of her right, title and interest in the company (omitted) trading as (omitted) Welton to the exclusion of the Husband and indemnify the Husband in relation to any liability associated with (business omitted), and the Husband sign all necessary documents to transfer any entitlement or shareholding he may have in (business omitted) or any of its assets to the Wife.
The Wife be solely liable for and forever indemnify the Husband with respect to any monies owed by the parties to the Wife’s parents.
That unless otherwise specified in these Orders, and save for the purpose of enforcing any monies due under these Orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)monies standing to the credit of the parties in any personal bank account as at the date of these Orders shall become the sole property of the party in whose name that account is held;
(c)monies standing to the credit of the parties in any joint bank account as at the date of these Orders shall become the sole property of the Wife;
(d)all insurance policies remain the sole property of the named owner;
(e)each party shall be solely liable for and indemnify the other against any liability in his or her name together with any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(f)each party be solely responsible for the payment of any credit card debt accrued in their respective names as at the date of these Orders; and
(g)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Welton & Welton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE
MLC 10479 of 2017
MS WELTON
Applicant
And
MR WELTON
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the mother and the respondent is the father of the children X born (omitted) 2007 and Y born (omitted) 2010.
The parties are in dispute about the living and spend time with arrangements for the children and the division of their property.
Issues in dispute
The following issues were in dispute in the parenting proceedings:
i)Whether both parents should have equal shared parental responsibility for the children, or whether the mother should have sole parental responsibility;
ii)With whom the children should live;
iii)The time the children should spend with the parent with whom they do not live;
iv)Whether the father’s time with the children should be supervised, and if so, by whom and for what period.
The following issues were in dispute in the property proceedings:
i)The percentage adjustment of the parties property;
ii)Whether the wife should retain the former matrimonial home, or whether it should be sold and the proceeds of sale divided between the parties;
iii)The adjustment to each party for s.75(2) factors.
Synopsis
In relation to parenting, I have determined it is in the children’s best interests that:
i)The wife have sole parental responsibility for the children;
ii)The children live with the wife;
iii)The children’s time with their father be professionally supervised.
In relation to property, I have determined that:
i)the agreed non-superannuation asset pool should be divided between the parties, so that the wife receive 65% and the husband receives 35%
ii)there be an equalisation of the parties combined superannuation entitlements, which will result in a payment from the wife’s fund to the husband’s fund.
The reasons for my determination follow.
Background
The wife was born on (omitted) 1980 and is currently aged 37 years. The husband was born on (omitted) 1978 and is currently aged 38 years. They commenced cohabitation in (omitted) 2004 and married on (omitted) 2006. The wife’s evidence is that the parties separated under the one roof in January 2016. On 18 September 2016 the wife and the children moved out of the former matrimonial home, situated at Property A. (“The Property A property”).
In (omitted) 2016 the wife obtained employment with (employer omitted), where she remains employed and earns a salary of $108,469 gross per annum.
During the marriage the husband was employed in the (employment omitted) industry, although he experienced a number of periods of unemployment from 2013 onwards. His employment was terminated in (omitted) 2016, and he is currently unemployed.
At the commencement of cohabitation the wife had approximately $10,000 which she had received as an inheritance and the husband was approximately $10,000 in debt. There were no other assets or liabilities of any significance.
In April 2009, the Property A property was purchased for $400,000. A deposit of $3000-$5000 was paid towards the purchase of the property and the balance was financed by a mortgage.
In (omitted) 2010 X was diagnosed with high functioning autism.
At the end of 2012 the wife took a voluntary redundancy package of $80,000 from her employer, (employer omitted). She applied the funds towards the purchase of a licence in a (omitted) business known as (business omitted).
The business did not meet expectations and the parties experienced financial stress as a result of the decline in family income.
In 2013/2014 the husband had difficulties with his employment. He eventually resigned from his employment and was unemployed for a number of months. As a result of a workplace bullying claim, the husband received the sum of $10,000.
The wife’s evidence is that the husband became increasingly abusive towards her, verbally, emotionally and psychologically from the end of 2015 and throughout 2016.
The husband’s evidence is that both parties were engaged in arguments during that time and both were responsible for the conflict and friction in the household.
In January 2016 the parties separated under the one roof.
On 22 April 2016 the husband left the family home around midnight and did not advise the wife of his proposed plans.
On 23 April 2016 the wife asserts that the husband sent her text messages from (omitted), threatening to commit suicide.
On 24 April 2016 the husband returned home and attended upon his general practitioner at (omitted) medical clinic. He was diagnosed with severe depression.
Between April 2016 and September 2016, there were various incidents and altercations between the parents, some of which occurred in the presence and or hearing of the children.
On 18 September 2016 the wife left the former family home.
On 28 September 2016 the wife made an application for an intervention order in the Ringwood Magistrates Court. The wife was the affected family member. An intervention order was granted in her favour. However, the children were not included as affected family members.
On 4 October 2016 the husband was served with a copy of the wife’s intervention order at the (omitted) police station.
On 6 October 2016 the husband admitted himself to the (omitted) hospital. He was admitted because he had planned to hang himself with a rope in his garage after having an argument with the wife. He was discharged on 12 October 2016.
On 11 November 2016, during a directions hearing of the wife’s intervention order application, the children were added to the intervention order. Despite the intervention order, the husband sent many emails and text messages to the wife in a breach of the intervention order.
On 3 February 2017 the husband again admitted himself to the (omitted) hospital.
On 22 February 2017 the husband admitted himself to the (omitted) hospital. He presented with suicidal ideation and planned to lie on train tracks. He also had intense thoughts to harm his ex-wife, her lawyers and others. He agreed to a voluntary admission.
On 8 March 2017 the husband admitted himself to the (omitted) hospital following a drug overdose.
On 9 March 2017 the husband again admitted himself to the (omitted) hospital.
On 24 April 2017 the husband was charged with stalking and persistent breach of the intervention order. He was convicted and placed on a good behaviour bond. Since the date of his conviction the husband has not breached the intervention order.
On 14 August 2017 the husband sent a letter from (omitted) psychology, to the wife’s solicitor and to the Ringwood Magistrates Court about his mental health status. That letter is annexure 7 to the trial affidavit of the wife sworn and 15 August 2017, and provides as follows:
“Mr Welton currently meets diagnostic criteria for emotionally unstable personality disorder with impulsive and borderline features. Mr Welton also exhibits traits of narcissist personality disorder and symptoms of harmful alcohol use.”
On 15 August 2017. The wife obtained a final intervention order against the husband. The affected family members are the wife and the children. The intervention order will expire on 15 August 2022. A copy of the order is annexure 10 to the wife’s trial affidavit sworn 15 August 2017.
Procedural history
On 27 October 2016, the wife commenced proceedings in this court, seeking interim and final orders pertaining to both property and parenting. The initiating application was abridged and listed on 14 November 2016.
On 14 November 2016 the husband appeared in person, however, he had not filed any responding material. During the course of the hearing, it became apparent that the husband had only recently been discharged from a psychiatric hospital, although he was not specific about the date of discharge. The wife’s application was adjourned to 13 December 2016 to enable the husband to obtain legal representation. Orders were also made for both parties to file further material and the appointment of an Independent Children’s Lawyers.
On the 13 December 2016 the application was again listed before me. The wife and the Independent Children’s Lawyers were represented by counsel. The husband appeared on his own behalf, although he was advised to and did consult the duty lawyer. The husband had not filed a response, nor any affidavits, although he did provide a report from his psychologist, dated 25 November 2016. Additionally, the notes of (omitted) hospital, where the husband had been treated were produced pursuant to a subpoena.
On that day orders were made for the husband to spend supervised time with the children, with the wife to pay the costs of professional supervision. Property orders were made providing for the husband to vacate the Property A property within seven days, and for the wife to have the sole use and occupation of the property, subject to her paying the mortgage and outgoings. Procedural orders were made for a valuation of the Property A property and for the husband to file material. The application was otherwise adjourned to 12 April 2017.
On 12 April 2017 orders were made providing for:
i)The parties to attend the (omitted) Contact Centre, with the wife to be responsible at first instance for any associated costs;
ii)The husband to attend for a psychiatric assessment;
iii)Preparation of a family report by a family consultant;
iv)Procedural orders ancillary to the trial, which was fixed for hearing on 6 September 2017.
Preliminary issues prior to commencement of the trial
There were two preliminary issues which require determination, prior to the commencement of the trial. They were as follows:
i)the husband’s application to transfer the family law proceedings to the Supreme Court of Victoria.
ii)the husband’s capacity to conduct the proceedings
The husband’s application to transfer the proceedings to the Supreme Court of Victoria
At the commencement of the trial the husband made an oral application seeking to transfer the proceeding to the Supreme Court of Victoria. His application was as follows:
MR WELTON: Well, due to my mental health situation obviously there’s the Mental Health Act and there’s the Wrongs Act and there’s also the Mental Impairment Act. Some of this falls within the responsibility off all courts and some of it falls within the responsibility of the Supreme Court only, and due to the situation and the impact
it has had on my health the Crimes Act of 1997, the Mental Impairment and Unfitness to Be Tried Act
MR WELTON: is relevant but obviously not to this court, so I was requesting that this matter, obviously, be dealt with at a higher court, the Supreme Court, so that all the legislation to protect me is relevant and that we can investigate into the perjury in the reports as well so the AFP have time to actually conduct that.’
The husband did not provide any proper reasons for the proposed application, nor address the court as to the jurisdiction of the Supreme Court to entertain proceedings under the Family Law Act1975.
He did however file a document which he relied on as his Summary of Argument and which referred to his rights and obligations of all parties pursuant to the Mental Health Act (Vic) 2014, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and Wrongs Act 2003 (sic). No prior notice of the specific application had been provided to either the wife or the Independent Children’s Lawyers. The application was dismissed prior to commencing the trial.
Husband’s capacity to conduct the proceedings
After that application was made by the husband I raised the issue of the husband’s capacity to act on his own behalf, or whether he thought it would be appropriate to appoint a litigation guardian.
As the husband did not have a treating psychiatrist, I suggested that both counsel and Mr Welton, or alternatively, counsel for the Independent Children’s Lawyers could contact Dr M, the forensic psychiatrist, to ascertain his opinion. The husband had attended upon Dr M as recently as 21 August 2017. Dr M’s report did not raise any issues about the husband’s capacity to conduct the litigation.
The matter was then adjourned to enable the relevant enquiries to be made and for the parties to read the family report. I was advised that a discussion had taken place between Mr Welton and the two counsel, and that the consensus was that there was nothing that would impede Mr Welton’s capacity to act on his own behalf, albeit the presentation of his case was unorthodox. The trial then proceeded.
The proposals of the parties at trial
The wife’s proposals
Parenting
The initial orders which the wife seeks from the court are set out in her Outline of Case document filed 4 September 2017.
They are in summary, as follows:
i)The wife have sole parental responsibility for X and Y;
ii)The children live with the wife;
iii)The husband spend time with the children at a supervised contact centre for a period of six months;
iv)At the expiration of the six-month period, the husband provided a report from his treating psychiatrist;
v)The parties attend family parenting dispute resolution, subject to receipt of a report from the husband’s treating psychiatrist, and the contact centre;
vi)Telephone time between the husband and the children;
vii)Each parent be entitled to obtain information from school;
viii)The husband be restrained from abusing, belittling, criticising or denigrating the wife in the presence of the children;
ix)The wife be permitted to obtain a passport for the children without the permission of the husband.
The final orders sought by the wife are in accordance with a Minute of Proposed Final parenting orders which was submitted by counsel for the wife during his final submissions. Those orders are as follows:
i)The wife have sole parental responsibility for the children X born (omitted) 2007 and Y born (omitted) 2010 (“the children”), and in doing so, the wife will keep the husband advised of any significant issues relating to the children.
ii)The children live with the wife.
iii)The children communicate with the husband by telephone each Tuesday from 7 PM until 7:30 PM, with the husband to initiate the call to the wife’s landline telephone in the wife’s insure the children are available to take the call. The wife will otherwise facilitate the children telephoning the husband at any reasonable time they express a wish to do so.
iv)The wife immediately advise the husband of any serious medical issue relating to the children.
v)The purpose of the husband’s attendance at (omitted) or any other treating psychiatrist or psychologist, the husband is at liberty to provide copies of the following documents:
a.the psychiatric assessment of the husband by Dr M dated 23 August 2017;
b.the family report of Ms S, dated 1 September 2017 (“the family report”);
c.the discharge summary from (omitted) ((omitted) hospital) filed with the Federal Circuit Court of Australia on 8 August 2017 (28 pages);
d.the letter from (omitted) psychology, to the Independent Children’s Lawyers dated 19 August 2017;
e.a copy of these final orders and reasons for judgment.
vi)The parties do all acts and things that may be required to facilitate the children spending supervised time with the husband at (omitted) Contact Centre (omitted) (“the Contact Centre”), or such other professional supervision service may be agreed, for a period of two hours at times nominated by the Contact Centre, on or as close to the following dates as can be accommodated by the Contact Centre:
a.(omitted) each year (the child X’s birthday);
b.(omitted) each year (the child Y’s birthday);
c.Easter Sunday;
d.the first weekend in July;
e.Father’s Day; and
f.Christmas Day.
vii)For the purposes of time at the Contact Centre:
a.the husband be solely responsible for the contact centre costs; and
b.the parties provide copies of the final parenting orders to the contact centre.
viii)The wife is at liberty to:
a.provide a copy of these orders to any school the children attend; and
b.provide a copy of the family report to any allied health professional upon who either of the children attend;
ix)The husband be restrained from abusing, belittling, criticising or denigrating the wife directly to, or in the presence of the children or from permitting any other person to do so, and from discussing these proceedings, or any aspect of them with the children.
x)The husband is hereby restrained by injunction from publishing, emailing, broadcasting or otherwise disseminating by any means, any account of any proceedings, or any part of any proceedings under the Family Law Act 1975, which identifies a party to this proceeding, or a person who is related to will, or associated with a party to this proceeding, or a witness (or any other person or organisation), including but not limited to any member of Parliament, unless otherwise ordered by the court.
xi)Pursuant to section 11 of the Australian Passports Act 2005, the wife be hereby authorised to obtain and maintain an Australian passport for the children X and Y without obtaining the written permission of the husband, and it is requested that this training passports office to all things required to give effect to this order.
Property
The orders which the wife initially sought in relation to property are also set out in her Outline of Case document.
They are in summary, are as follows:
i)The husband transfer to the wife his interest in the former family home;
ii)The wife refinance the mortgage secured against the former matrimonial home;
iii)The wife pay to the husband the sum of $118,531, which is equivalent to 65 % of the non-superannuation pool;
iv)A default clause for sale of the property in the event the wife fails to pay the husband the nominated to sum;
v)An equal division of the parties joint superannuation entitlements;
vi)Otherwise each party retain their respective assets and liabilities.
The final property orders sought by the wife are the same as those in her case outline, except that the payment to the husband is specified as $119,740. The orders also contain machinery provisions in relation to the manner in which the husband is to be paid in the event he fails to attend a settlement and an order pursuant to s.106 A of the Family Law Act1975.
Documents relied upon by the Wife
The wife relied upon the following documents:
i)Amended Initiating Application filed 16, August 2017;
ii)Trial Affidavit filed 16, August 2017;
iii)Financial Statement filed 16, August 2017;
iv)Affidavit of Mr T (valuer) filed 11 August 2017;
v)Discharge records of filed by husband on 8 August 2017;
vi)Psychiatric assessment of husband prepared by Dr M dated 23 August 2017.
The husband’s proposals
Parenting
The orders which the husband initially sought are set out in the husband’s Minutes of Final Settlement Orders document, which was filed on 8 August 2017.
They are in summary, (adopting the husband’s terminology) as follows:
i)The wife will incur the cost to finalise divorce proceedings;
ii)The children to predominantly reside with the wife until such time as the husband has his own home, and thereafter they will reside in a shared care arrangement (50/50);
iii)Pending the husband obtaining his own home, he will have unrestricted rights and visitation of the children;
iv)He will otherwise have the children in his care, every second weekend from 3:30 PM Friday to 4 PM Sunday, with such time to be extended to Monday if the Monday is a non-school day;
v)The wife’s mother will determine the time the children will spend with the parties on special occasions;
vi)All legal proceedings, including interim and active orders and the intervention order, are to cease immediately.
On 10 November 2017 the husband filed an affidavit. Appendix 2 of that affidavit sets out his Minutes of Final Settlement Orders.
The orders sought, (adopting the respondent’s terminology) are as follows:
i)That the respondent will include the cost to finalise divorce proceedings;
ii)That the respondent (father) will have full custody of the children:
a.The applicant (mother) will have every second weekend;
b.As arranged via email.
iii)Days of significance will be determined through the (omitted) family Centre (omitted) and they will make sure it is amicable.
a.If not agreed, by the parents.
3) EFFECTIVE IMMEDIATELY
iv)That all legal proceedings are to cease immediately, both magistrates and family circuit court.
a.This includes all interim and active orders
b.IVO, Good behaviour bond and conviction revoked.
Property
The orders which the husbands initially sought in relation to property are also set out in his Minutes of Final Settlement Orders document.
They are in summary, (adopting the husband’s terminology) as follows:
i)Within seven days the husband transfer his interest in the former matrimonial home to the wife;
ii)Contemporaneously with the transfer, the wife discharge the mortgage and pay to the husband the sum of $168,905, which is equivalent to 50% of the net equity in the property;
iii)There be an equal division of the combined superannuation entitlements;
iv)Otherwise each party retain their respective assets and liabilities.
The husband’s position during the trial was that the family home should be sold, irrespective of the wife’s capacity or otherwise to retain the property and pay him a sum equivalent to his entitlements.
The orders he sought in his “ Minutes of Final Settlement Orders”, set out in Appendix 2 of his affidavit filed 10 November 2017, are as follows:
a)‘1. That within seven days of the date of these orders (“the date”), both owners are to do all acts and things and sign all necessary documents to sell the property situated at Property A in the state of Victoria, otherwise known as certificate of title volume (omitted) Folio (omitted) (“the Property A property”).’
b)‘2. That within 7 days the applicant is to remove herself from the above property. This is the same timeframe you allocated the respondent remove himself in December 2016.’
c)‘3. That contemporaneously with the sale, through the (omitted) service:
(a) The agreed value of the property is estimated at $780,000+.
(b) The final payment to the respondent (is 70%) and the applicant (is 30%), after sale costs;’
d)‘4. That pending the sale of the Property A property:-
(a) The parties hold their respective interests in the Property A property upon trust pursuant to these orders;
(b) The wife be solely responsible for outgoings of the Property A property of whatsoever nature and kind.’
e)‘15. The applicant return the wedding and engagement rings that were given to her by the respondent’
f)An equal division of the parties combined superannuation entitlements;
g)Otherwise each party retain their respective assets and liabilities.
Also included in that document is the husband’s alleged claim for compensation for damages arising from the family law proceedings. The relevant extracts are as follows:
4) COMPENSATION FOR DAMAGES
1. As per the Wrong’s Act (Vic), the Australian Parliament is to compensate the respondent damages of $4,800,000.
a. This is calculated by the amount the respondent was paid yearly ($80,000) in his last job, then it is times by three (Wrongs Act Vic).
i. Then times by 20, due to the inability of the system to ensure my human rights
ii. = the 20 year career you have taken, lost and cost me
b. It is proven that no duty of care was forthcoming, by everyone involved, that this situation is now (beyond doubt) proven to be the catalyst for the rapid deterioration of Mr Welton’s mental illness and disabilities.
c. This situation could have and should have been avoided. It has been proven by expert testimony of Dr M, that everything is in fact unlawful due to mental impairment.
2. The payment (damages) is to be made within 28 days, from the authorisation of this document, with the signature of the Honourable Attorney General, George Brandis, QC, in (on behalf of the Australian legal system and the Australian Parliament).
4. If not compensated as requested, then this compensation will then include all the other services who were unlawfully involved in using my illness and disability is against me, without any duty of care, required legislation or due diligence ($4,800,000 each).
a. The situation will then become public knowledge and the end situation will be resolved in the Supreme Court of Victoria.
…….
I will not be able to work for the next two years, because of the extensive therapy required through (omitted) (that has commenced), this therapy is only now required because of what the legal system allowed TL FC Law and their client to do to me. You have pushed me to the edge of breaking, this whole situation has been proven to have been avoidable, as per Dr M’s expert testimony.”
The Honourable Attorney General George Brandis QC
The Honourable Attorney General George Brandis QC signs this document understanding that the Australian legal system accepts liability to the damages of the respondent, which allows for the compensation as stipulated in section 4).
Name: _____________________________________________
Position :___________________________________________
Signature: __________________ Date: __________________
Documents relied upon by the husband
The husband relied upon the following documents:
i)Trial Affidavit filed 22 August 2017;
ii)Trial Affidavit – “response” of husband filed 22 August 2017;
iii)Financial Statement filed 8 August 2017;
iv)Minutes of final settlement orders filed 8 August 2017;
v)Tort application – removal of human rights, Civil Liberties, breach of mental health act (Vic) 2014 – no duty of care for disability and mental illness, filed 8 August 2017;
vi)Summary of argument filed 4 September 2017;
vii)Family report dated 1 September 2017;
viii)Report of Dr M dated 23 August 2017;
ix)Report of (omitted) psychology, dated 19 August 2017;
x)Intervention Order dated 15 August 2017;
xi)Letter to husband from wife’s solicitors dated 8 August 2017;
xii)Wife’s outline of case.
The proposal of the Independent Children’s Lawyers
The Independent Children’s Lawyers did not advise the court of her proposal until final submissions.
The final proposals of the Independent Children’s Lawyers are in the same terms as the orders sought by the wife, which are referred to at paragraphs 50 hereof.
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act1995 (Cth)).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) in a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged
The wife and the husband relied upon their respective affidavits and financial statements. The evidence recounted the history of the parties’ marriage, pertaining to both parenting and financial matters.
Both the husband and the wife gave evidence and were cross-examined. I therefore had the benefit of observing both parties in the witness box for a considerable period and observing their demeanour in the court throughout the proceedings.
The family consultant, Ms S, prepared a family report, dated 1 September 2017. She gave evidence and was cross-examined. Dr M, psychiatrist, prepared a psychiatric assessment of the husband dated 23 August 2017. He also gave evidence and was cross-examined.
The wife’s evidence was candid and truthful. She presented as an honest and reliable witness, who sought to answer the questions that were asked of her. There was no reason to doubt the reliability of her evidence.
She was considered and thoughtful and at all times appeared to have her children’s best interests paramount. She made concessions where appropriate and demonstrated considerable insight into the children and their relationship with the husband.
The husband’s evidence was problematic. He was a far less impressive witness than the wife. He attempted to answer questions in a verbose, evasive and repetitive manner, which he perceived would advance his case. Many of his answers were irrelevant and were not responsive to questions put to him in cross-examination.
He had a myopic view of relevant events and did not demonstrate any degree of insight. He was overly focused on what he perceived to be his compensation claim in the Supreme Court, and seemed to view this proceeding as a matter which was required to be concluded prior to him proceeding with his claim. He was strident in advising the court that the court and practitioners involved in the proceedings had breached their obligations to him under the Mental Health Act (Vic) 2014, breached his human rights, the proceeding should be immediately brought to an end and that he did not pose a risk to his children. He was particularly blaming of his wife for not settling the proceedings, however it is apparent that any settlement could only be on his terms.
Where the evidence of the husband differs from that of the wife, I prefer the wife’s evidence.
I will refer to the evidence of both Ms S and Dr M later in these reasons.
The Applicable Law
Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will firstly consider the primary considerations of the act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
There was no issue during the trial that ideally, and subject to the husband’s mental health, the children should have a meaningful relationship with both parents.
Post separation the wife has attempted to facilitate the children spending time with their father. Prior to the issue of proceedings the children spent time with their father by agreement between the parties.
The wife’s evidence is that prior to the husband’s admission to (omitted) hospital on 6 October 2016, she did not appreciate the extent of the husband’s mental health problems.
After his discharge from hospital on 12 October 2016, the wife arranged for the children to spend time with their father, albeit primarily for periods during the day. Since December 2016 she proposed that all time should be supervised by her parents.
Prior to his final submissions, the husband’s proposal had been that the children live with him in a shared care arrangement. His final proposal was for the children to live with him and spend alternate weekend time with the wife.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The real issue in this proceeding is the assessment of risk to the children if they spend unsupervised time with their father.
I address the husband’s mental health and the risk posed to the children in these reasons under the heading “Unacceptable Risk”.
Additionally, in her trial affidavit the wife refers to the family violence, which she says was verbal, emotional and psychological. Her evidence is that the husband became increasingly abusive towards her from the end of 2015 and throughout 2016. She details specific incidents in her trial affidavit, which were not challenged during cross-examination. I accept the wife’s evidence in this regard.
The family report at paragraphs 48 to 52 refers to allegations of family violence, as reported by the wife. The report writer was not challenged in relation to her evidence in this regard. At paragraph 52 of the family report, Ms S states:
Allegations of family violence appear to be in the context of mental health issues and marital separation.
I agree with that statement.
The additional considerations are set out in s.60CC (3) of the Act. I will now consider the additional considerations.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The views of the children are referred to in the family report.
At the time of the family report interviews in late August 2017, X was (age omitted). He is in grade 4 at (omitted) primary school. X was diagnosed with high functioning autism in December 2010, and both parents accept that diagnosis.
At the time of the family report interviews, Y was seven years and three months. He is in grade 1 at (omitted) primary school.
It is evident from the family report that X wants to see his father and was worried at the prospect “that I might not see dad for a very long time, or ever again: and “I might not get to do much fun stuff with my dad, it might be short visits”.
He initially expressed a desire to see his father, for a week at a time and thought that such an arrangement would be fair to both parents. He then stated, the one thing he wanted more than anything else was to see his father and that he wanted to live with him. His comments indicated that he is also acutely aware of the parental conflict, his mother’s fear of their father and his father’s anger directed towards the wife and her family.
Y also wants to see and spend time with his father. He reported feeling very sad and annoyed that he did not see his father and said, “I used to see my dad, but now my heart is falling away because I can’t see my dad.”
Y was aware that his mother had problems with his father and that his father could not be near his mother or grandmother’s home. Other than that, he stated that there was lots he did not know about.
Both children obviously miss their father and are able to articulate that. Both children are also exhibiting behavioural difficulties, with X throwing chairs at home and at school.
The comments from the children are unequivocal and direct. They must be seen in the context of the children having positive memories and experiences with their father. Both children are young and additionally, X has high functioning autism. The consultant, at paragraph 84 of the family report, identifies that normal development for X is compromised by his autism diagnosis.
It is clear that neither child has any understanding or real comprehension of their father’s mental health issues and his unpredictable, threatening and extremely concerning conduct. They do not understand the impact on his capacity to care for and appropriately parent them.
I do not propose to accord significant weight to the children’s views.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
Prior to separation, both children enjoyed positive relationships with each of their parents. This was not disputed by either party.
The observation of the children and their mother by the family consultant is positive and unremarkable. There was no observation between the children and their father by the family consultant.
There is no evidence to suggest that the nature of the children’s relationship with their father has changed to any significant extent, from their perspective.
The children’s relationship with other family members was not in dispute during the hearing. At paragraph 67 of the family report, X identified his family members, which included parents, his grandparents and two uncles. He also stated that he felt close to his mother’s new partner Mr M.
The wife’s evidence is that initially after separation, she and the children lived with her parents for approximately 3 months. During that time the children were well-behaved at school, at home, and settled in her care. The wife’s parents and her brother lived in the home. The maternal grandparents now collect the boys from school each day, except Wednesday, when they attend after-school care. The maternal grandparents obviously have considerable involvement in the children’s lives, and are integral members of the children’s extended family.
At paragraph 32 of the family report, the family consultant reports that the husband stated that his brother and niece (aged 25) have both been diagnosed with borderline personality disorder.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Participation in making decisions about major long-term issues in relation to the children
The husband has not spent any unsupervised time with the children since October 2016. The wife obtained an interim intervention order against the husband in October 2016. On 11 November 2016 the intervention order was varied to include the children as affected family members. The wife’s evidence is that notwithstanding the intervention order, the husband continued to contact her until he was charged in April 2017 with breaching the order and stalking the wife.
An example of the husband’s contact with the wife, around the time of the intervention order is annexure 6 to her trial affidavit sworn 15 August 2017. In that text message, he threatens the wife as follows:
And im (sic) serious, if it doesn’t end today I going to be a real cunt. So please stop it, Ive (sic) had enough of begging you. You’re waisting (sic) your money
There was no evidence of any joint discussions about major long-term issues relating to the children. The wife has not sought to have any communication with the husband. The current intervention order which expires in 2020, prevents the husband from communicating with the wife.
Opportunity to spend time with and communicate with the children
The wife vacated the family home on 17 September 2016 following a heated altercation between the parents, in the presence of the children.
She returned to the home on two occasions when the husband was not present to collect her personal belongings.
The children spent some limited time with the husband during late October 2016.
The wife’s evidence is that the subsequent to 14 November 2014, the first return date of her initiating application to this court, she made several offers for the husband to spend supervised time with the children. The husband declined her offers as he did not want to have supervised time and consequentially did not see the children between 14 November 2016 and 5 December 2016.
On 2 December 2016 the parties attended an appointment at a family relationship centre. The husband subsequently spent supervised time with the children, at the home of the maternal grandparents, for about an hour, on the following dates:
i)Friday 2 December 2016;
ii)Monday 5 December 2016;
iii)Tuesday 6 December 2016.
On 13 December 2016, when the matter was again listed before me, orders were made for the husband to spend time with the children professionally supervised by the Family Contact Service, as the maternal grandparents were not prepared to continue to act as supervisors.
As referred to in these reasons, due to abusive and threatening emails which the husband forwarded to Ms J, the principal of Family Contact Service, the service declined to facilitate supervision.
On 12 April 2017, I made orders for the husband to spend time with the children at the (omitted) Contact Centre. The time between the husband and the children, in accordance with those orders, has not taken place.
Prior to Father’s Day 2017 the wife proposed to the husband that the children spend time with him supervised by the maternal grandmother. The husband declined to do so, and the children did not see their father on Father’s Day.
The husband has also expressed his dissatisfaction when the wife made attempts for the children to telephone their father after they had experienced some local flooding. According to the wife the husband’s response was aggressive, and questioned why she permitted the boys to ring him.
The husband’s position is and has always been that he does not pose a risk to the children and that supervision is unnecessary, although he did concede whilst being cross-examined, that he would agree to supervision as he apparently realised that was the only way he would be able to spend time with the children.
Counsel for the wife cross-examined the husband as to why he hadn’t spent any time with the children over the past six month period as follows:
As far as over the last six months are concerned, you still haven’t exercised any option to have any time with the kids, have you? I have, but I’ve asked for time with the kids with the supervision of my brother, which Ms Welton won’t allow. Sorry, Mrs Welton. Ms Welton won’t allow.
And you weren’t willing to accept any other alternative, were you? No, I wasn’t willing to accept any other alternative.
And do you see that perhaps your brother, Mr J, might not be the most suitable person to supervise your time with the kids? He is very suitable.
Despite having his own mental health issues and his use of drugs, as you acknowledge? Yes.
The husband’s proposal for his brother to, who also suffers from borderline personality disorder and has drug issues, to supervise his time with the children, demonstrates a profound lack of insight.
I find that the husband has not taken the opportunity to spend time with the children, despite efforts by the wife to facilitate such time.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Subsequent to separation the wife has been solely responsible for the financial support of the children. The husband has not made any payments for child-support nor any direct financial contribution to the support of the children.
According to the wife’s evidence, which was not challenged by the husband, he has purchased some minor items of clothing and shoes for the children.
During cross-examination, the husband offered to repay the wife one half of all expenses she had incurred on behalf of the children, subject her to her providing details in accounts of expenditure. In my view that proposal is completely impractical and unduly onerous on the wife.
I find that the husband has failed to fulfil his parental obligations to support the children.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Both children have remained living with their mother in the former family home since December 2016.
I intend to make orders for the children to remain in the primary care of their mother, and she seeks to remain in the family home, subject to her capacity to make a payment to the husband. If the wife is able to refinance the existing mortgage secured against the property and obtain sufficient funds to pay out the husband, then the children’s living circumstances will not dramatically change.
In relation to their father, his absence in their life is having an adverse effect on their emotional well-being.
At paragraph 90 of the family report, Ms S identifies that the father’s staunch refusal to spend supervised time with the children lacks child focus and is solely about the needs of Mr Welton. In her opinion, the husband lacked insight into the harm he is causing the children by his continual refusal to see them, albeit supervised.
If the husband continues to refuse to see the children in a supervised setting, this will no doubt continue to have an adverse effect on the children. They will continue to experience feelings of loss and sadness in regard to their father. It is entirely up to Mr Welton as to whether he develops sufficient insight to resume a supervised relationship with the children.
As previously referred to, during cross-examination the husband conceded that he would accept his initial time with the children to be supervised. The problem with that is that there are extant orders enabling the husband to have supervised time with the children, which he has not initiated. I doubt the sincerity of the husband acquiescence to supervised time.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no practical difficulty with the children spending time and communicating with the husband, subject to any requirement for supervision.
In the event orders made for supervision, then such time will need to be professionally supervised at either a contact centre or by private agency.
As the husband does not pay child support for the children, nor financially contribute to their maintenance, in any manner whatsoever, it is appropriate that the husband meet the costs of such supervision. I am confident he will have the financial capacity to do so, once he receives his entitlement to a property settlement.
Any impediment to the children spending time with their father is most likely to arise from their father’s future denial of the necessity for supervision and refusal to comply with orders providing for supervision.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs emotional and intellectual needs
The children have lived with their mother in the former family home since December 2016. She has been solely responsible for attending to the children’s emotional, intellectual and financial needs.
In her trial affidavit, she deposes to the nature of the relationship between herself and the children as close. Her evidence describes activities which she enjoys with the children, including running, going to the park, attending play centres and enjoying other treats and experiences. She also describes attendance at extracurricular activities and the after-school involvement of her parents with the children.
I find the wife’s conduct to be appropriate, and have no concerns about the level of care she provides for both children. She clearly has the capacity to provide for the children’s emotional and intellectual and financial needs.
As referred to in these reasons, the husband has declined to spend any time with the children since December 2016. The main basis for his refusal is his inability to accept that the time between him and the children should be supervised. He has repeatedly maintained that supervision is not necessary, and that he should have equal care of the children.
The husband describes a loving relationship between himself and the children, prior to separation. There is no evidence to doubt this. The comments of the children to the family report writer make it abundantly clear that they miss their father and would like to spend time with him.
However, the husband’s steadfast refusal to spend supervised time with the children is incomprehensible. It demonstrates a self-focus and prioritising his own needs over those of the children. He does not seem to have any understanding of the emotional damage he is causing the children. His attitude has been that he will see the children only on his terms. I have no confidence in his capacity to meet the children’s emotional and intellectual needs.
In terms of the children’s physical needs, the husband currently resides with his brother Mr J, who has borderline personality disorder and illicit drug use issues. The husband’s niece, presumably Mr J’s daughter, also resides in the house. She also has borderline personality disorder. The husband is of the opinion that this is a suitable environment for the children. The husband did not provide any evidence of his living circumstances or future proposals to accommodate the children. I have considerable concerns about the children being exposed to the husband’s current home environment.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
X is aged 10 and Y is aged 7½. X has been diagnosed with high functioning autism. Any relevant factors have been discussed elsewhere in these reasons.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The most compelling example of the husband’s attitude towards parental responsibilities is his failure to spend supervised time with the children. Orders were made in December 2016 enabling him to do so, however, he has not chosen to do so.
In his final submissions, counsel for the Independent Children’s Lawyers stated that the husband had put his own needs before those of the children. He submitted it was astonishing that he had done so, knowing the children miss him and that his actions would be likely to cause hurt and upset to the children, and that Dr M had provided him with advice that his time with the children was likely to be supervised.
He also submitted that the wife’s attitude in running the case was as equally informative. The wife’s final proposals provide for the children to have supervised time with their father, notwithstanding she could easily have asserted that the children should have no time with the husband.
I agree with both those submissions of the Independent Children’s Lawyers. Furthermore, the husband has demonstrated a complete lack of parental responsibility by proposing that the family home be sold because of his inability to cope with the wife remaining in the home. At no stage did he consider the needs of the children and the desirability of stability and continuity, particularly for X who has high functioning autism.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
In her trial affidavit the wife alleges that the husband has perpetrated family violence. Paragraphs 23 to 67 of that affidavit detail the events leading up to the separation and the circumstances of wife obtaining an intervention order against the husband on 28 September 2016. I do not propose to repeat those allegations.
She acknowledges that the family violence escalated as the husband’s mental health deteriorated and that the separation became inevitable. The husband in his material disputes the wife’s version of events, however he did not seek to cross-examine her about the incidents particularised in her affidavit.
It is apparent that the children were involved in and or witnessed the parental conflict. Unprompted, X described to the family consultant the incident in the park where the husband approached the wife, and X was with her. This caused great distress to X.
According to the family consultant, at paragraph 51, the husband admitted the circumstances of the breach of the intervention order, he was charged with, although he attempted to justify the circumstances of the breaches.
I accept the wife’s evidence in this regard, and find that there have been instances of family violence perpetrated by the husband against the wife and on occasions, in the presence of one or other of the children.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
On 28 September 2016 the wife obtained an interim intervention order against the husband in the Ringwood Magistrates’ Court. A copy of the application for intervention order and the interim intervention order made on that date, are Annexure 3 to the wife’s trial affidavit.
The wife’s evidence is that on 3 October 2016, the husband sent her numerous emails in the evening, one of which stated:
‘Do you really want it Princess. Because I’m only getting started? Say yes and see, I dare you, I will take you all with me.’
Annexure 4 to the wife’s affidavit is a chain of emails sent from the husband to the wife on the evening of 3 October 2016.
On 4 October 2016, whilst attending the (omitted) police station to lodge a complaint about the paternal grandfather’s conduct, the husband was served with a copy of the interim intervention order.
On 11 November 2016 the wife successfully applied to add the children to the intervention order.
On 24 April 2017 the husband was charged with stalking and persistent breaches of the intervention order. He was eventually convicted of breaching the interim intervention order.
On 15 August 2017 the wife’s application for an intervention order was listed for a contested hearing in the Ringwood Magistrates’ Court.
The wife’s evidence is that she was represented on that date and the husband represented himself. At the commencement of the hearing the husband handed a letter to the court before leaving the court. That letter is annexure 8 to the wife’s trial affidavit.
Various emails sent by the husband to the wife and or her legal practitioners, which are annexure 9 to the wife’s trial affidavit, were tended on behalf of the wife at the hearing of her application for an intervention order
An intervention order was made on 15 August 2017, in favour of the wife, X and Y, with the order to expire at midnight on 14 August 2022.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The wife’s final proposals seek orders that the husband spend very limited supervised time with the children. The husband proposes that the children live with him and spend each alternate weekend with their mother. If orders are made for the husband’s time with the children to be supervised, based on past conduct, it is likely that he will refuse to spend time with the children.
The Independent Children’s Lawyers proposes orders in the same terms as the mother.
It is in the best’s interests of X and Y for the proceedings to finally end and for them to have certainty about their future relationship with their father.
To make orders in accordance with the wife’s proposal will minimise endless litigation from the husband, and provide more certainty and stability for the children.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The main issue in this proceeding is whether the husband poses an unacceptable risk to the children, arising from his mental health. I will now address this issue.
Unacceptable risk
In Stott & Holgar & Anor [2017] FamCAFC 152, the Full Court of the Family Court has recently succinctly considered the law with respect to unacceptable risk.
At [34] – [38] the Full Court stated:
[34] The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[35] The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador [2009] FamCAFC 196;(2009) 43 Fam LR 268 at [89].
[36] In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
[37] As an eminent former judge of this Court has said (emphasis added):[1]
... unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ ...
[38] We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn [2006] FamCA 1316; (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FamCA 350; (2007) FLC 93-326 at [124] and [125]; Johnson and Page [2007] FamCA 1235; (2007) FLC 93-344 at [66] and [67]).
In Harridge & Anor & Harridge [2010] FamCA 445 Murphy J particularised a list for trial judges determining issues of unacceptable risk as follows at [73]:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
The evidence pertaining to the husband’s mental health is as follows:
i)The discharge summaries from the (omitted) hospital; [1]
[1] Exhibit ICL 2.
ii)Letter from (omitted) psychology dated 19 August 2017 [2]( ICL 1);
[2] Exhibit ICL 1.
iii)Report of Dr M dated 23 August 2017;[3]
[3] Exhibit ICL 7.
iv)Family report of the Ms S, family consultant, dated 1 September 2017;
v)Unorthodox documents filed on behalf the husband , including the following:
a.Defendant reply to legal proceedings filed 8 August 2017;
b.Minutes of Final Settlement Orders which attach correspondence and emails passing between the husband and the wife’s practitioners and other recipients;
c.Husband’s summary of argument – Tort- Discrimination- Mental Health;
d.Tort Application- removal of human rights, Civil Liberties, breach of mental health act in (Vic) 2014 – no duty of care for disability and mental illness;
vi)Emails from the husband to family contact service ( ICL 6);
vii)Emails from husband to wife’s solicitors, members of parliament, and to this court.
Discharge Summaries from (omitted) Hospital
The husband has had a number of admissions as an inpatient of the (omitted) Hospital during 2016 and 2017. The discharge summaries demonstrate that he was an inpatient on the following dates:
a)(omitted);
b)(omitted);
c)(omitted);
d)(omitted);
e)(omitted).
The discharge summary relating to his admission on 6 October 2016 , states as follows:
Diagnosis:
Borderline Personality Disorder
Reason for Admission and Presenting history:
Brief crisis admission, planned to hang himself post argument with wife for taking kids away from him yesterday, self presented to ED seeking help. VOL admission/g of cluster B personality structure (borderline and antisocial)
Mr Welton drove himself to ED this morning at 7 AM after worsening suicidal thoughts with a plan and intent of self harm on (omitted) with a rope in his garage. Presented to ED to be admitted to the hospital to get help.
Stated that he has a plan to end his life because he cannot take the constant racing thoughts of suicide and ending his life. Has always had these thoughts for as long as he can remember and has self managed them up until recently, where he told his new GP four months ago, whom (sic) started him on prestiq. Described a starting dose of 100 mg, then reduced to 50mg after the first month stated that he felt the medication only numb to his mind, but didn’t fix the racing thoughts of self harm and wanting to end his life .
Stated that he plans to wear his wedding suit and have pictures of his kids in his pocket this Friday when he hangs himself. Plans to use the beam on the roof with a chair and kick the chair away.
Mr Welton stated that he always has had thoughts to hurt and kill people for as long as he can remember. Denied he would ever act on those thoughts. He admitted to having a list of people he wants to take with him before he killed himself. Wouldn’t elaborate on names but stated that he would make a plan to find out where they are and would either assault or stab them to death.
Stated that he has done a lot of research into methods to end his life. Found that hanging self with a particular knot would be the quickest. Has had previous plans of gassing self or jumping off a bridge. Previous threats of stabbing himself at a court hearing a a few months ago, and (vague about this information.)
Denied AH/VH and described his thoughts as his own. Two versions of himself, one evil and one normal. Nil predominating over the other. Has had them for as long as he can remember.
Stated that his first episode of depression was when he was 15 when he was at school. Got access to a gun then. Wouldn’t elaborate on it further. Feels that his relationship with his wife helped him become “normal” for a few years when they met at the age of 18. Married at for the last 10 years states that he has always had thoughts of suicide and there has never been a period in his life that he can remember.
ChronicSI since a child
always have planned at the back of his mind
stated he planned to gas himself three months ago, had the equipments, then thought of kids (was his last attempt)
when he was 16 he had a shot gun in his mouth, didn’t want to do it
The discharge summary relating to his admission on (omitted) 2017, states as follows:
today, self presented in crisis to (omitted).
Affect tearful, crying openly frequently when speaking about his children used quantity of tissues during Ax.angry tone when describing his poor treatment by his wife and the legal system , courts and lawyers. Mood angry, says is depressed.
Speech almost an unbroken monologue, at times difficult to redirect conversation away from themes of injustice from court and vindictiveness of wife
“I just want my life back… I want this shit out of my head… I don’t want to hurt myself, but I know I will… The court isn’t assisting my recovery so I put in a claim for compensation, there is no empathy, no sympathy, no consideration for my recovery, they made orders without my legal representation… I wanted the court to put a mental health plan in place for my safety and the safety of others… The court knows what they should have done and they didn’t… I lost my shit in court. I just got up and left, I said they’re going to do whatever they want anyway…”
Multiple charges when he was younger. Age 13/17. Reported had 111 counts of burglary in the past and 111 counts of theft. Past charges for weapon/drug possession. Denied jail terms. Pass community-based order.
Chronic SI ( suicidal ideation) usually fleeting in response to stressors in life, denied a current SI/plan or intent
Reported TOHTO (threat of harm to others) but guarded as to whom this is directed ? ex wife? Father in law
The discharge summary relating to his admission on 22 February 2017 states as follows:
BIB (brought in by)brother with suicidal ideation with planned to lay on the train tracks as intense thoughts to harm ex-wife, her lawyers and others, but not wanting to harm others and rather harm himself. Agreed to voluntary admission.
He stated that specifically he would like to harm those who have ruined his life – his ex-wife and his ex-wife lawyer.
… No warmth displayed when talking about the children
stated that he does not want to be “known as the father who went postal and killed a few people”
he was evasive regarding current thoughts to harm others. When asked whether he agreed with the diagnosis of BPD, he stated that it “absolutely” describes him and is aware that his thoughts to harm others and then the thoughts to harm himself, in preference to harming others, were in keeping with this diagnosis
he acknowledged that he has other personality traits. In addition to the BPD – volunteered that he has some psychopathic traits and agreed that he has some narcissistic traits
.. He insists that he is not safe to leave ED
stated that he knows if he leaves that he will kill himself – planned this morning to put his head on the train tracks and maintains that this will occur
we discussed what a potential ward admission would offer – as he agreed that the treatment for his long-standing BPD, anger management issues, psychopathic and narcissistic traits would not be fixed on a crisis admission
he suggested that he could be admitted for containment and to have a PARC referral put in place
dismissive when discussing CATT and insistent that he would not be safe on discharge and would “be a high risk to himself and to others”
Management/progress:
Mr Welton was admitted to (omitted) at (omitted) after a short PAPU admission for homicidal intention.
Mr Welton reported himself to be evil Mr Welton and good Mr Welton. He reported that the evil Mr Welton is psychopathic and wants to kill himself and others. Mr Welton denied history of cruelty to animals. He used to shoot rabbits with his father in his childhood.
The discharge summary in relation to his admission on 8 March 2017 states as follows:
clinical synopsis
38M present with polypharmacy overdose
PHx
borderline personality disorder with antisocial/narcissistic personality
multiple admissions toIPU/PAPU
last admission (omitted) to PAPU
went to IPU after homicidal ideation
intentional OD of chlorpromazine 500 mg, Desvenlafaxine XR 400 mg and alcohol
I intend to make an order for the child’s primary carer, the wife to have sole parental responsibility, subject to a requirement for her to notify the husband.
As I intend to make an order for sole parental responsibility in the wife’s favour, she should be able to make decisions about overseas travel for the children and to apply for passports for the children, notwithstanding the lack of the husband’s consent.
I will make the appropriate order to enable the wife to obtain passports for the children. In the event I do not do so, it is likely that she would be required to make further application to the court, which would not be desirable.
Conclusion
As I have concluded that sole parental responsibility should vest in the wife, I am not required to consider the statutory pathway prescribed by s.65DAA.
The wife and the Independent Children’s Lawyers seek orders that the husband should spend extremely limited time with the children and that such time should be professionally supervised.
After considering the evidence, I have determined that the husband poses an unacceptable risk to the children, and therefore I agree that the husband’s time should be professionally supervised, and that the minutes proposed by both the wife and the Independent Children’s Lawyers are entirely appropriate.
Property
The husband and the wife were unable to resolve property proceedings and I was required to determine both applications for property adjustment pursuant to s.79 of the Family Law Act1975 (“the Act”).
Relevant legislation
Property proceedings between parties to the marriage are governed by the provisions of s.79 of the Family Law Act1975.
Section 79 (1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79 (2) provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s.79 (4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
That section provides as follows:
Section 79(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
Section 79(4) (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
Section 79(4) (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
Section 79(4) (e) the matters referred to in subsection 75(2) so far as they are relevant; and
Section 79(4) (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
Section 79(4) (g) any child support under the Child Support (Assessment) Act 1989 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.
Prior to the decision of the High Court in Stanford v Standford [2012] HCA 52 the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003]FamCA 395.
The approach, as set out in Hickey (supra) may be summarised as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s.75 (2) of the Act. Fourthly the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court noted that s.79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties interests in property, the court must first determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
The High Court stated in Stanford at [37]:
[37] First, it is necessary to begin consideration of whether it is just and equitable to make property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property……. The question posed by S79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.”
The High Court further stated at [42] that in most cases:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In summary, in the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.
Is it just and equitable to alter the parties’ property interests?
In this matter the parties have separated and both parties have made an application to the court seeking orders altering their respective property interests.
The parties are no longer living in a marital relationship, and as stated at paragraph [42] of Stanford (supra), there will not ‘thereafter be the common use of property by the husband and the wife’.
I am satisfied that it is just and equitable to alter the parties’ property interests.
Having satisfied myself that it is just and equitable to make an order altering the interests of the parties in the property, the approach and considerations I must make are as follows:
(a)Attribute value to the assets comprising the property pool;
(b)Identify and give weight to the various contributions of each of the parties as set out in s.79 (4) (a) – (c) and make an assessment as to the entitlements of the parties based on their respective contribution;
(c)Identify the relevant considerations as set out in s.79(4)(d)-(g), including the matters set out in s.75 (2) so far as they are relevant, and then decide whether any further adjustment is appropriate;
(d)Consider whether the proposed orders are to equitable.
PROPERTY ISSUES IN DISPUTE AT THE HEARING
The following issues were in dispute:
i)The weight to be attributed to the contributions of each party during the relationship;
ii)Whether there should be an adjustment in favour of either party pursuant to s.75(2) factors.
THE ASSETS AND LIABILITIES OF THE PARTIES
The wife’s outline of Case document listed the assets and liabilities as follows:
| No. | Asset | Valuation | PARTY |
| 1. | Property A | $715,000 | Joint |
| 2. | (omitted) Bank Account (omitted) | E $200 | Wife |
| 3. | (omitted) Bank Account (omitted) | E$79 | Wife |
| 4. | (omitted) Bank (omitted) | E$1 | Wife |
| 5. | (omitted) Bank (omitted) | E$13 | Wife |
| 6. | (omitted) Bank account (omitted) | $1,500 | Husband |
| 7. | (motor vehicle omitted) | $30,000 | Wife |
| 8. | Holden (omitted) | $5,000 | Husband |
| 9. | (business omitted) | Nominal | Husband |
| 10. | (business omitted) | Nominal | Wife |
| Sub – total | $751,793 |
| Liabilities | |||
| 11. | Loan from (omitted) Bank | $359,884 | Joint |
| 12. | (vehicle omitted) Hire Purchase | $22,000 | Wife |
| 13. | Personal loan owing to wife’s parents | $8,000 | Joint |
| 14. | Visa credit card | $7,650 | Wife |
| 15. | (omitted) credit card | $7,830 | Joint |
| Sub – total liabilities | $405,364 | ||
| Nett total non-superannuation assets | $346,429 |
| Superannuation | |||
| 16. | (omitted) super | $235,374 | Wife |
| 17. | (omitted) super | $91,639 | Husband |
| Sub – total | $327,013 | ||
| Nett Total Assets (Incl. Superannuation) | $673,442 |
The husband did not cross examine the wife about the asset and liability pool, Counsel for the wife cross-examined the husband about the extent of the debt to the wife’s parents. He eventually conceded that he thought it might have been $7,000 and not $8,000.
The wife’s trial affidavit, at paragraph 174, states that the husband paid off the joint credit card in November 2016 and that the wife subsequently closed the account. Accordingly, I intend to delete the joint credit card debt from the asset pool.
In his closing submissions the husband stated that the former matrimonial home was valued at “$780,000K +”. However, he did not provide any valuation evidence of the alleged increase value of the property. I intend to adopt the valuation which was agreed at the commencement of the trial and which was consistent with the valuation of Mr T, Valuer.[7] This evidence was not challenged.
[7] Annexure TGI 1 of the affidavit of Mr T, sworn 10 August 2017.
The asset pool for division between the parties is as follow:
| No. | Asset | Valuation | PARTY |
| 1. | Property A | $715,000 | Joint |
| 2. | (omitted) Bank Account (omitted) | E $200 | Wife |
| 3. | (omitted) Account (omitted) | E$79 | Wife |
| 4. | (omitted) Bank Account (omitted) | E$1 | Wife |
| 5. | (omitted) Account (omitted) | E$13 | Wife |
| 6. | (omitted) Bank account (omitted) | $1,500 | Husband |
| 7. | (motor vehicle omitted) | $30,000 | Wife |
| 8. | Holden (omitted) | $5,000 | Husband |
| 9. | (vehicle omitted) | Nominal | Husband |
| 10. | (vehicle omitted) | Nominal | Wife |
| Sub – total | $751,793 |
| Liabilities | |||
| 11. | Loan from (omitted) Bank | $359,884 | Joint |
| 12. | (omitted) Hire Purchase | $22,000 | Wife |
| 13. | Personal loan owing to wife’s parents | $8,000 | Joint |
| 14. | Visa credit card | $7,650 | Wife |
| | | | |
| Sub – total liabilities | $397,534 | ||
| Nett total non-superannuation assets | $354,259 |
| Superannuation | |||
| 15. | (omitted) super | $235,374 | Wife |
| 16. | (omitted) super | $91,639 | Husband |
| Sub – total | $327,013 | ||
| Nett Total Assets (Incl. Superannuation) | $681,272 |
CONTRIBUTIONS
Financial contributions section 79(4)(a)
Initial contributions
The respective assets of each of the parties at the commencement of cohabitation are not particularly controversial.
At the commencement of cohabitation the wife had the following assets and liabilities:
i)$10,000 which she had received as an inheritance
At the commencement of cohabitation the husband had the following assets/liabilities:
i)debts of approximately $10,000
Contributions during the marriage
There was also little factual dispute about the direct financial contributions of each party.
On (omitted) 2009, the parties purchased the former matrimonial home situated at Property A for the sum of $400,000. The parties applied minimal savings of between $3,000 and $5,000 and the balance was funded by a mortgage.
Throughout the marriage both parties were employed. The wife was employed in (occupation omitted) roles, prior to taking a voluntary redundancy in 2013.
In 2013 the wife obtained a voluntary redundancy package from (employer omitted) and received the sum of $80,000. This was applied towards the purchase of the business known as (business omitted).
According to the wife, (business omitted) did not realise income in accordance with expectations and in early 2016 she obtained a part-time role with (employer omitted). She then obtained a full-time position with (employer omitted) on 21 November 2016, and remains in this role.
The husband was employed in the (occupation omitted) industry throughout the marriage, save for a period of unemployment of approximately four months in 2013/2014. The husband was unemployed for a period of time in mid-2016, subsequent to his employment being terminated in (omitted) 2016. He received a payout for an unfair dismissal application, subsequent to his employment being terminated.
Both parties contributed their income to the benefit of the family and payment of family expenses, during the relationship.
Contributions post separation
Subsequent to separation, except for a relatively short period of time, the wife remained living in the Property A property and the husband has lived elsewhere. I am uncertain where he has lived or what rent he has been required to pay. His financial statement filed 8 August 2017 deposes to payment of rent of $50 per week to his brother, Mr J. The wife has paid the mortgage and outgoings of the Property A property, together with her personal living expenses and those of the children. These expenses include school fees, uniforms, books, casual clothing, (hobby omitted) fees, entertainment fees, and of course food and living expenses .The husband has not paid any child support to the wife post separation, nor contributed towards any expenses of the children, except that he bought the boys socks, a pair of shoes and a jumper each. He has not seen the children at least since late 2016.
Section 79(4)(b) Non-Financial Contributions
Both the husband and the wife claimed they made non-financial contributions during the course of cohabitation. The extent and nature of those contributions was disputed. The wife’s evidence is that she and the husband shared the role of homemaker and parent to the children. She acknowledges that the husband would do his share of cooking and cleaning. However, she did the majority of school pick-ups and drop-offs with some assistance from the husband. Her evidence was that she managed the finances of the marriage, paid bills, did grocery shopping and laundry and stayed on top of school, notices and commitments.
The husband’s evidence was that he was as equally involved, if not more than the wife, in the care of the children.
Where the party’s evidence differs, I prefer the evidence of the wife.
Post separation, the wife has been primarily responsible for the care of the children. The husband has had limited time with the children. Since at least November 2016 the husband has not spent any time with the children at all, and has declined to spend supervised time with them in accordance with my orders of 13 December 2016 or 12 April 2017.
The section 79 (4)(d),(e),(f) and (g) and the section 75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage.
The orders which I propose to make will have limited affect upon the earning capacity of the husband. The time I intend to order between the husband and the children will be extremely limited. If the husband’s mental health improves, he will be able to pursue employment. Insofar as the wife is concerned, she will have the full-time care of the children and will be required to make necessary arrangements for care of the children, when they are not at school, and whilst she is at work.
Section 75(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties
The wife is aged 37 and is employed as a (occupation omitted). She earns gross income of approximately $2070 per week. She has been employed in this role since (omitted) 2016 and intends to continue for the foreseeable future. She enjoys good health.
The husband is aged 38 and unemployed. He has been unemployed since around (omitted) 2016. He was previously employed in the (omitted) industry. He has mental health problems which may impede his capacity to obtain employment in the future.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
The property and financial resources of the parties are referred to in these reasons. There was no dispute that the wife has the physical and mental capacity to continue with her current employment. The husband has varied and significant mental health issues, which are likely to affect his capacity to obtain employment in the future. His evidence is that he has recently been accepted for a regime of treatment, and he is optimistic about the results of such treatment.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
The orders which I intend to make will provide that the children will reside with the wife and will spend limited supervised time with the husband. The wife’s care of the children, with little assistance from the husband, will require her to make arrangements for care of the children during periods when they are not at school, and she is at work.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
The commitments of each of the parties that are necessary to support himself /herself are set out in their respective financial statements.
Neither party was cross-examined about the expenses claimed in the financial statements.
(e) the responsibilities of either party to support any other person; and
Each party has a responsibility to contribute towards the support of the children. The wife is responsible for the expenses associated with the children whilst they are in her care.
Since separation the husband has not paid any child support for the benefit of the children nor contributed towards the costs of their care, save for purchase of limited items of clothing.
Apart from the children, there was no evidence that either party had responsibilities to support any other person.
Section 79(4)(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
The wife receives a limited carer allowance for X of $32 per week. Apart from that she does not receive any other government benefits. In his financial statement filed 8 August 2017, at part D item 12, the husband deposes to receiving a new start – sickness benefit of $554 per week. He may at some time in the future, be eligible for a disability pension, resulting from his mental health.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
The orders which I intend to make will result in the wife either retaining the Property A property, or receiving a lump sum payment, in the event the property is sold. The husband will receive a lump sum payment from the wife, or in default of the payment, from the proceeds of sale of the Property A property. Both parties will be able to adequately rehouse themselves, either by purchasing another property or renting. The wife will continue with her present employment and her income is sufficient to enable her to adequately support herself. The husband’s future income earning capacity is unknown.
The (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
This is not a relevant consideration.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and your current the just
This is not a relevant consideration.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
This is not a relevant consideration.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
The parties cohabited for twelve years and were married for just over ten years, and neither earning capacity has been the affected by the duration of the marriage.
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
The wife will be able to continue in her role as a parent and will continue with her employment to enable her to meet her parental obligations, as she has done to date.
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
This is not a relevant consideration.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
I am satisfied that the orders I intend to make under s.79 enable both parties to adequately maintain themselves.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not a relevant consideration.
(na) any child support under the Child Support (Assessment) Act 1989that 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; and
As previously referred to, the husband does not pay child support, and does not contribute to the costs of maintaining the children. Whether or not he will pay child support in the future is dependent upon his capacity to obtain employment. There was no evidence about the husband’s possible resumption of employment. If he does not obtain employment, it will fall on the wife to be financially responsible for the care of the children. As the children are only 10 and 7 ½ years of age, there are many years during which the wife will be responsible for the financial support of the children.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
All relevant considerations have been referred to in these reasons.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
This is not a relevant consideration.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
This is not a relevant consideration.
Conclusion as to contribution
Counsel for the wife in his final submissions, urged me to determine that the wife’s contributions were 55% of the asset pool and that the husband’s contributions were 45% of the asset pool.
The basis for his submissions were the wife’s post separation contributions, both financial and non-financial.
The husband submitted that the contributions of the parties should be determined, as equal.
Having considered the matters referred to in these reasons, and the submissions of both counsel, I determine that the wife’s contributions should be assessed at 55% and the husband’s at 45%.
Conclusion as to future needs
Taking into consideration the above matters, including, but not limited to :
i)The wife’s principal care of the children and the limited time the children will spend with the husband;
ii)The young age of the children;
iii)The husband’s non-payment of child support since separation;
iv)The uncertainty about the husband’s future earning capacity;
v)The uncertainty about the husband’s capacity to pay child support and contribute to the financial support of the children in the future;
vi)The disparity in income earning capacity of the parties;
I am satisfied that there should be an adjustment in favour of the wife of 10% pursuant to s.75 (2) factors.
Adjustment of interests
As a result of the findings made relating to contributions and future needs, I am satisfied it is just and equitable to make orders adjusting property between the parties, so that the wife is entitled to 65% of the non-superannuation asset pool and the husband should receive 35% of the non-superannuation asset pool.
Both parties agreed during the trial that the combined superannuation entitlements should be divided equally between them. The husband, in his final proposed orders resiled from that division and sought a split from the wife’s superannuation of $95,773.62. That amount is equivalent to a division of superannuation of 58% in favour of the husband and 42% in favour of the wife. No submissions were made as to why such a division would be appropriate.
After considering the evidence, and bearing in mind the relatively young ages of both parties, I have determined that the combined superannuation should be divided equally between the parties. This will result in a split of the wife’s superannuation in favour of the husband of $71,867.
On the basis of the agreed property pool, the division of assets I have determined is summarised as follows:
| Wife’s Assets | |
| Property A | $715,000 |
| Motor Vehicle | $30,000 |
| Cash at bank | $293 |
| (business omitted) | nil |
| Subtotal non-superannuation assets | $745,293 |
| Less Liabilities | |
| Mortgage on Property A | $359,884 |
| (vehicle omitted) hire purchase | $22,000 |
| Payment to husband | $117,491 |
| Visa credit card | $7,650 |
| Loan to parents | $8,000 |
| non-superannuation assets | $230,268 |
| Superannuation | |
| Wife’s superannuation | $235,374 |
| Less - Superannuation split to husband | - $71,867 |
| Superannuation Subtotal | $163,507 |
| Nett Assets | $393,775 |
| Husband’s Assets | |
| Payment from wife | $117,491 |
| Cash at bank | $1,500 |
| Motor vehicle | $5,000 |
| Subtotal non-superannuation assets | $123,991 |
| (business omitted) | nil |
| Liabilities | nil |
| Superannuation | |
| Superannuation | $91,639 |
| Superannuation split from wife | $71,867 |
| Superannuation Subtotal | $163,506 |
| Nett Assets | $287,496 |
Conclusion
The division of assets referred to in the preceding paragraph will be achieved by the wife either borrowing sufficient funds to enable her to pay the husband, and retain the Property A property, or alternatively a sale of the Property A property. In the event the Property A property is sold, the wife will receive a substantial cash payment, which would enable her to rehouse herself, either by purchasing another property or renting.
The husband’s proposal at trial was that the former family home should be sold as he was not able to cope with the prospect of the wife and her new partner living in the property. He claimed any such result would have an adverse impact upon his mental health.
Paragraph 175 of the wife’s trial affidavit, she refers to a text message sent to her by the husband. On 25 November 2016. The text message is as follows:
“I will burn this house to the ground before ever letting you have it.” and “you’ll never get the house, so just mediate and settle. You are not getting the house, get it through your thick head!”
The text messages are yet another example of the husband’s threatening and intimidating behaviour, without any consideration of the consequences to or impact on both the wife and the children. The wife should be afforded an opportunity to retain the house in the event she has a capacity to do so.
As previously referred to, the combined superannuation entitlements will be divided equally between the parties.
In addition to superannuation split, the husband will receive a cash payment of $117,491 which will be sufficient to enable him to rehouse himself, probably by renting a property.
I am satisfied the division of property is just and equitable.
I intend to make orders accordingly.
Wife’s application of 19 October 2017 and application for an injunction
On 19 October 2017 the wife sought that the matter be listed before me because of her serious concerns about emails forwarded by the husband between 8 September 2017 and 19 October 2017.
The relevant emails between 8 September 2017 and 19 October 2017, were sent by the husband to the Prime Minister, the Attorney General other members of the judiciary, members of Parliament and members of the Senate. In some instances photographs of the two children with their names and dates of birth were included in the emails. Other emails contained overt threats seeking to involve members of the judiciary and members of Parliament to interfere in my decision-making process.
The wife alleged that the husband had breached s.121 of the Family Law Act1975, and that his conduct, in some circumstances was contempt of court.
Because of the serious nature of the Application, I arranged for the husband to be represented by a member of the Victorian Bar pro bono duty barrister’s scheme. I was greatly assisted by counsel who appeared at court on extremely short notice and represented the husband. During the course of the application the husband sought through his counsel to reiterate his heartfelt apology to the court. I also clarified with counsel that the husband had the requisite capacity to provide instructions to her.
The parties conceded that I had the power to make such an order pursuant to either s.114 or s.68B of the Family Law Act1975. The wife’s application was resolved by the husband consenting to an injunction until publication of my orders and reasons.
In addition to parenting and property orders, the wife and the Independent Children’s Lawyers seek an order that the husband be restrained as follows:
The husband is hereby restrained by injunction from publishing, emailing, broadcasting, or otherwise disseminating, by any means, any account of any proceedings, or any part of any proceedings under the family law act 1975, which identifies a party to this proceeding, or a person who is related to, or associated with a party to this proceeding, or a witness (or any other person or organisation), including but not limited to any member of Parliament, unless otherwise ordered by the court.
The order sought effectively mirrors the provisions of s.121 of the Family Law Act1975, except that there is a specific reference to any Member of Parliament.
I am mindful of the objections raised by counsel for the husband on 19 October 2017. I am of the view that the restriction of publication of court proceedings referred to in section 121 of the Act is sufficient. The husband is well aware of section 121 of the Act and the possible serious consequences of any breach.
I do not propose to make the injunction sought.
I certify that the preceding three hundred and forty seven (347) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 15 December 2017
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Costs
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Damages
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Duty of Care
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Injunction
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Jurisdiction
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Natural Justice
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