ZANG & NEIL
[2019] FamCA 760
•22 October 2019
FAMILY COURT OF AUSTRALIA
| ZANG & NEIL | [2019] FamCA 760 |
| FAMILY LAW – PARENTING – Where the mother seeks sole parental responsibility and no time with the father – Where the father seeks equal shared parental responsibility and alternate weekends with the child – Where the child is almost six – Where the father has a history of verbally and physically abusive behaviour – Where the father is derogatory about the mother and her family - Where two supervision centres ceased contact due to the father’s behaviour – Where the child is at risk of harm with the father – Where supervision isn’t appropriate – Order for no time. FAMILY LAW – PROPERTY – Where the parties were in a relationship for 20 months – Where the father sought payment from the mother of $71 583 – Where the mother’s property pool was formed by the overwhelming contributions of her parents – Where the father made minimal contributions during the relationship, or post separation – Where it is not appropriate to make any adjustments – No Orders made for property adjustment. |
| Family Law Act 1975 (Cth) ss 60CC, 68B, 102NA, 114, 117(2A) |
| Mallet & Mallet (1984) 156 CLR 605 |
| APPLICANT: | Ms Zang |
| RESPONDENT: | Mr Neil |
| INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
| FILE NUMBER: | SYC | 8450 | of | 2015 |
| DATE DELIVERED: | 22 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 24, 25, 26 & 27 September 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Greenaway |
| SOLICITOR FOR THE APPLICANT: | Metta Legal |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Druitt |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Phillip A Wilkins & Associates |
Orders
IT IS ORDERED
That the mother have sole parental responsibility for the child X born … 2013.
That the child live with the mother.
That the child spend no time with the father.
That the father be permitted to send the child letters, cards and gifts not more than monthly, to an address nominated by the mother and the mother shall ensure that the receipt of any such letter, card or gift is acknowledged by text message or email.
That the mother provide to the father copies of all school reports, school photographs and awards received by the child within 28 days of their receipt by her.
That the father is restrained from attending at the school which the child attends.
That the mother be permitted to travel with the child outside the Commonwealth of Australia without firstly obtaining the father’s permission.
That the child’s name be removed from Family Law Watch List.
That each party retain all property, whether real or personal, in her or his possession at the date of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zang & Neil has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8450 of 2015
| Ms Zang |
Applicant
And
| Mr Neil |
Respondent
REASONS FOR JUDGMENT
Ms Zang (“the mother”) and Mr Neil (“the father”) met in December 2012 and married in 2013. Their daughter X, was born in 2013.
The mother is of Chinese origin but she is an Australian citizen.
The father was born in Country B. When the parties married, the mother sponsored his spouse visa. He has since been granted permanent resident status.
They separated, according to the mother, in December 2014 and, according to the father, in mid-2015. It seems to be agreed that they lived in separate residences after December 2014 but the father had hopes of reconciliation.
The mother commenced proceedings in relation to X in December 2015.
Central to the dispute about X are the competing allegations of family violence.
The mother alleges that the father was the perpetrator of violence towards her and her mother from the outset of the relationship. The maternal grandparents are Chinese and are not able to converse in English. The maternal grandmother speaks very limited English, the maternal grandfather even less.
The father alleges that he was the victim of family violence at the hands of the mother and the maternal grandmother, and that the mother has concocted false allegations against him in order to prevent him from having a relationship with X. The allegation of violence against the maternal grandmother arises out of an incident in October 2015 which is explored in detail later in these reasons.
He alleged that the mother slapped his face when she was pregnant with X. The mother admitted that she did so and said she apologised at the time. The mother admitted slapping the father’s face when she was interviewed by officers of the Department of Family and Community Services (“DFCS”), as it was then known, in July 2017.
The father also alleged that, when they were living at Suburb C, the mother “would often turn violent by slapping or scratching me and I would have to physically restrain her to stop her”. He alleged that she slammed the bathroom door causing it to jam; that she broke crockery; that she cut up his clothes and that she broke a burner on the stove. The mother in cross-examination denied those allegations.
The father adduced no supporting evidence in relation to these allegations and, in the face of the mother’s denials, I am unable to find them proven on the balance of probabilities.
On any view of their respective cases, these parents are in a state of high conflict.
The mother alleged that the father’s behaviour was controlling and coercive. She deposed that, before the marriage, she told the father that she wanted to postpone the wedding and he said:
If you don’t marry me, you will be a single mother, which means my child will be raised by a single mother. This will ruin her life. If you ruin her life, you ruin my life and I will try my best to ruin your life.
The mother interpreted those words as a threat and was distressed. She sought medical attention that evening for swelling in her joints that she asserts was triggered by her distress and anxiety. The father disputes her anxiety as being a cause for her medical problems.
They married.
The father, cross-examining the mother, said to her:
Father: I don’t believe that’s what I said. I think what I intended was I wanted to remain a family and raise our child because it was our obligation, and I thought it was fate, and I loved you and I love my child and I wanted to remain a family?
Mother: Not by threatening, though.
Father: I wasn’t – maybe you took me – maybe the anxiety disorder that you had and depression problems painted what I said in an – a light that wasn’t what I intended?
Mother: That’s your assumption. It’s absolutely not true. I – all my feeling, I know how I felt about that threats.
I accept that the mother felt threatened on that occasion.
The mother deposed:
The [father] would often become physically and verbally abusive when angered. I recall a number of occasions where he would push me against the wall, choke me, spit on my face, or forcibly wipe his saliva all over my face with his hands and call me a ‘cunt.’ The [father’s] behaviour did not improve during my pregnancy or after the birth of X.
Having heard the evidence in relation to the event which occurred in October 2015, involving the parents, X and the maternal grandparents, and particularly having listened to the recording of the event, I accept that the father is capable of sudden and frightening verbal violence.
The mother deposed that, in November 2014, she sought counselling with her pastor and that, afterwards, she told the father. He said to her “You violated my trust. It is all your problems and you need to solve yourself out. If you leave me. X is the one to suffer. The blood is on your hands”.
In cross-examination by counsel for the mother, the father conceded that was what he said but said that it was not a threat.
In cross-examination the father said that he “constantly corrected” the mother for walking on the wrong side of the footpath and agreed with the proposition that he had to constantly remind her and tell her she was doing the wrong thing.
I do not propose to review each and every allegation of family violence but to concentrate on those incidents where third parties were involved, and where records independent of the parents’ recollections exist.
The mother admitted that, when she was pregnant, she slapped the father’s face on an occasion when she felt aggrieved that he had gone off on a walk with a friend and left her waiting. She said that she apologised to him and that she had not hit him on any other occasion.
The maternal grandmother said, in answer to questions from the father, that in late 2012 when she was newly arrived in Australia, she had coffee with the mother who was wearing a short sleeved top and saw bruises on the mother’s arms. She asked the mother why she had been careless with so many bruises and the mother told her that the father had assaulted her.
The maternal grandmother deposed that, in late December 2013 she witnessed the father, in the apartment at Suburb D, grab the mother by the throat and push her towards the door of the living room until she was against the wall. She deposed that he was yelling at the mother and saying “outside” while trying to push her out the door. The maternal grandmother tried to pull the father’s hand away from the mother’s throat. The maternal grandmother said that after the father let go of her throat, the mother was coughing and had tears.
In cross-examination, the father asked the maternal grandmother whether she was aware that, after the mother slapped him (in 2012) he would have to hold her down to stop her assaulting him. He put to the grandmother that what she interpreted as him choking the mother was him restraining the mother after she assaulted him. She disagreed. She said words to the effect “Do you think choking someone at the neck is called self-defence?” and that she had seen the father choking the mother “multiple times”.
I accept that incident occurred as the maternal grandmother alleged.
The maternal grandmother was cross-examined about another incident which is described in the affidavit of the maternal grandfather. He deposed that in May 2013, there was an altercation about the keys to the mother’s car. The father tried to leave the apartment with the keys. The mother tried to get the keys from him. The maternal grandfather deposed that the father punched the glass door, smashing it.
The father cross-examined the maternal grandmother about that incident. The thrust of his cross-examination was that he was entitled to take the car and that the maternal family should not have tried to stop him. He did not suggest to the maternal grandmother that he did not smash the door.
I accept that he did.
Difficulties between the parents in relation to the father’s spending time with X commenced almost immediately after they physically separated.
Records produced by the police show that they were called on … December 2014 at about 3pm to an incident at a park. The parents argued, the father became upset and left the park with X. The mother called the police who arrived a short time later. The father returned with X. Both parents were calm and discussed the incident with the police. They agreed that the father would have X for the afternoon and return her later to the mother.
On 30 December 2014, according to the mother, or on 2 January 2015 according to the father, there was an incident in relation to which they give totally different accounts.
There is no dispute that on the morning of 30 December 2014, the parents and X spent time together in a park.
On the mother’s version, the father phoned her at 7.30pm and asked to see X. She agreed. He did not come but called her again at 8.30pm, asking her to bring X to a nearby park to spend time with him. She told the father it was X’s bedtime but that he could come to her home to see X. He arrived, screamed at the maternal grandmother calling her a “devil”, pushed his way into the bedroom and pulled X away from the mother who was breast feeding her. X was crying. The father refused to give her to the mother. The mother called a friend, Ms E who came to the apartment and spoke to the father. The father finally returned X to the mother and left at about 11pm.
The maternal grandmother deposed that the father came to the house at about 8pm. She opened the door and he said to her words in English that she understood as “Devil” and “fuck”. The father pushed his way into the bedroom where the mother and X were. X was crying and the parents argued. The maternal grandmother said to the father in English “My house. You go”. The mother’s friend Ms E came and the father did not leave until 11pm.
The father denied that he referred to the maternal grandmother in the terms she described, however on 21 June 2015 the father sent a message to the mother stating “That’s the last time I hand my baby over to your Devil Mother – who I want nothing at all to do with my child”.
On … October 2015, during a recorded altercation at the house of the father, the father screamed “you ruined my life you fucking little devil”. This incident will be discussed later in these reasons.
I accept that despite his denials, the father referred to the maternal grandmother as a devil, in correspondence with the mother and verbally, and that he did so on that occasion and on other occasions.
On the father’s version, this incident occurred on 2 January 2015 and the parents had agreed that he would spend time with X from about 6pm. As he was walking to the mother’s apartment, he called the mother who told him that X was asleep. He could hear X in the background so he continued to the mother’s apartment. The paternal grandfather answered the door and attempted to stop the father entering. The father spoke to the mother who called her friend Ms E. Ms E arrived and spoke to them both. The father left about 7pm.
The father, in cross-examination of the mother, in relation to that event, asked her:
So was it not true that it wasn’t that I was acting aggressively towards you that started the whole problem? It was that you were blocking me from regular interaction with my daughter and then trying to smear my image and smear – and change the situation to make it look as though I had actually started this – the incident?
The mother denied that version.
Ms E did not give evidence in the proceedings.
The father tendered a screenshot of a photograph of himself on Facebook, posted on 30 December 2014, at the home of his friend at Suburb F. There is no indication on the photograph which assists in knowing at what time the photograph was taken. The photograph does not demonstrate that the father could not have been at the mother’s home on the evening of 30 December 2014 as she alleged.
The father deposed that, on 2 January 2015, he and the mother and X spent the morning at a local park with a colleague of the father and her daughter.
The father’s evidence was that the incident occurred on 2 January 2015 and that he left the mother’s home at 7pm. The father tendered a text message from himself to the mother at 7.22pm on 2 January 2015 which stated:
I won’t let you hold my child hostage for long so get something set up with Ms E or a psychologist very soon so we can work out your problem. I can’t take it for too long. Lets not go through courts if we can help it – will be very messy and expensive for both of us.
It kills me to be away from my child and I can’t just sit here and pretend to be OK with this.
The mother was adamant that the incident took place on 30 December 2015 as she deposed and that the text message on 2 January 2015 referred to a different conversation.
I am unable to determine which version is more reliable as to the date upon which the incident occurred. However, I accept that there was an occasion in late December 2014 or early January 2015 where the father, on his own evidence, entered the mother’s home despite the efforts of the paternal grandfather to stop him, or on her evidence, the efforts of the maternal grandmother to stop him.
On any version of the event, the father entered the mother’s home uninvited and despite the attempts of the maternal grandparents to stop him entering. Having heard the recording of the event in October 2015, I do not accept that the father’s behaviour while he was in the mother’s home on that occasion would have been polite and respectful. I accept that, when he was thwarted, the father was capable of both verbal violence and physical violence and that it is likely that he displayed both on the occasion in question, on which ever date it occurred.
The police were called again in relation to an incident on 21 January 2015. Again the parents each give a different account of the incident. On the mother’s version, they met at a park so that the father could spend time with X. They argued. The father snatched X from the mother and ran to her car, strapping X into her car seat. The mother got into the driver’s seat. The father told her to get out of the car. The mother got out and the father got into the car and drove off. The mother contacted the police. They contacted the father. He returned the car and X to the mother.
On the father’s version, he told the mother that he would be leaving the park with X to spend time with her. The mother started yelling and trying to take X from him. The father drove off with X in the mother’s car but, within a minute, returned to the park. He knew that the mother was making trouble so he drove to the nearby shopping centre with X. The police called the father and asked him to return to the park. He did so. The police spoke to both parents and they left together.
On either version, X was exposed to an exchange of loud voices between her parents and the police were asked to intervene.
The father tendered a series of text messages which he asserted supported his version of the event but the texts are dated 28 January 2015 and clearly do not relate to the incident on 21 January 2015.
The mother deposed that the father closed his produce business (to which reference is made in that part of these reasons that deals with financial matters) in February 2015 and said to her “This is all your fault. The plan was that I would live in your apartment rent free so I can do my business. You fucked everything. You abandoned me when I needed you most”.
In cross-examination the father disputed his use of the expletive but said that this was his view at the time and that it remains his view. He held the mother completely responsible for the failure of the business and the marriage.
The mother alleged that on 24 February 2015 she met the father with X and they argued. The father yelled at her, grabbed her pony tail and pulled it, causing her to lose her balance while holding X. The mother reported the incident to the police who took out a provisional Apprehended Domestic Violence Order (“ADVO”) against the father. The mother later asked the police to withdraw the ADVO. She deposed that she did not want to affect the father’s employment prospects.
The record produced by the police indicates that the father was interviewed about this incident. The father denied that he had assaulted the mother. Police noted:
[The father] informed police that he in fact had hold of the child whilst they were arguing and was standing by the door as he was going to take the child for a walk. [The father] claims that [the mother] has walked up to [him] and tried to take their child from him and it is at this time that [the father] has grabbed the back of the shirt of [the mother] to move her out of the way so that he could get out of the door. [The father] believes that when he held the shirt of [the mother], it is at this time that he accidentally grabbed some of the pony tail of [the mother]. [The father] said he did not intentionally grab and pull the hair of [the mother], more so trying to get her away from him so that he could leave as he didn’t want to argue any more in front of their child.
Again, on any view of the evidence, X was exposed to a violent incident between her parents.
The police records note that on 13 March 2015, the mother attended at the police station and signed a statement saying that she held no fears for her safety. The mother told the police that the father had not since threatened her and that there had been no further incidents.
On 11 May 2015 (although the parents suggest this occurred on 9 May, I accept that the police records are accurate) there was an incident which was not violent but nevertheless is relevant to the progression of the difficulties between the parents. The father did not have a car. X had spent the night of 10 May 2015 at the father’s home in Suburb G and on 11 May he returned X to her mother by public transport, by ferry to Circular Quay and then, because trains were disrupted, by bus to Suburb H station. Because of problems with the public transport, the journey took much longer than the father had anticipated and, by the time X was returned to her mother, she badly need her nappy changed.
The significance of this event is not that the father did not make any arrangements to change X’s nappy during the unexpectedly long trip, although that is relevant to his parenting skills, but that he blamed the mother for X’s discomfort and his own.
In his trial affidavit he deposed:
I could smell that she’d just made a poo but we were on the bus, packed full of people, and I could not change here [sic] at that moment. I felt ashamed as I’d never imagined I’d ever find myself in the position in life not to be able to afford a car and have to rely on public transport to transport my child around. I had always been a hard worker and had always had enough to afford things. I was resentful towards [the mother] who had put me in this position...
The father deposed that he “was looking like a deadbeat looser [sic] on a bus with my child who I couldn’t take care of”.
The father tendered in his case an email sent to the mother on 12 May 2015 where he writes:
You force your child to take a 2.5 hour trip from Suburb G to Suburb D on public transport where she poops and pees on the 1.5 hour bus trip (trains were down on Sunday) then blame me for it??
The mother was critical of the state X was in when she was returned. The father deposed:
I was quite angry that she dare blame me when it was her that had placed me in this vulnerable situation. Looking back on it I can see that [the mother] had actually engineered the situation. She was trying to make my life hell.
The father deposed:
I was so upset with [the mother] after she blamed me for X’s wet nappy that I told her I needed to blow off some steam and go for a drive. I dropped [the mother] and X to her apartment and went for a drive.
The mother’s version of that event is that when the father handed X over to her he said to her:
It’s your fault that you let your child travel for two hours on public transport. Do you know how hard it is? She is crying on the bus and people look at me like I’m a bad father. I am not taking the bus home so you have to drive me home.
The tenor and content of the statement to which the mother deposed is consistent with the father’s evidence and with the manner in which he put questions to the mother in cross-examination and I accept that he said what she alleged.
The mother agreed to drive the father to Suburb G. She asked him to wait in the garage while she changed X and fed her. The mother deposed that when she went to the garage, the father had taken her car and driven off. She called the police. The mother was concerned about how she would be able to get to work the next day without her car.
Records produced by the police indicate that they spoke to the father by phone. The notes record:
[The father] stated that he drove the car home and would return it to her the following day. Police advised [the father] to return the car immediately.
The father returned the car to the mother.
I do not accept that the mother agreed that the father could “blow off some steam and go for a drive” in her car. This was but one of a number of occasions when the father took the mother’s car without her consent.
On 16 May 2015 there was an incident at a shopping centre. The mother’s friend Sophie was present. On the mother’s version, she and the father started arguing when she was handing X to the father. He said that he would not return her. The mother refused to hand her over. The father was angry and tried to grab X. The mother tried to call the police. The father tried to grab her phone and yelled at the mother.
The father’s version of that event is that the mother staged the incident. He purposely arranged the hand over in a place where he knew there were CCTV cameras. They argued about the fact that the mother had changed X’s child care arrangements and was attempting to stop X from staying with him overnight. The father was holding X, preparing to leave so that he could take X to his home. The mother started yelling at him to give X back. He did so. He then took X back from the mother who started screaming “stop hitting her”. The mother called the police and the father tried to take her phone to explain to the police what was happening. The mother yelled “Stop hitting me”. The father left with X.
Records obtained by the father, produced by the police, indicate that the Computer Aided Despatch record suggests that the father was abusing the mother.
The mother gave X to the father and he left. The police arrived. They viewed the CCTV footage of the incident. The CCTV footage was not in evidence and there is no note in the COPS entries about what it revealed. However, the records indicate that the police would consider an ADVO for the protection of the mother, suggesting that, in their view, she was in need of protection from the father.
The police interviewed the father at his home in Suburb G where he was with X. The records of the police note:
[The father] stated that he was holding X in his arms and she began crying, at which point he handed her back to [the mother]. [The mother] then refused to give X back to [the father] and began walking towards their stroller. [The father] stated that he used both of his hands to grab X under her arms and take her back from [the mother]. [The mother] called Police on her mobile telephone. At this point [the father] stated that he made an attempt to take [the mother’s] phone out of her hand so that he could explain to Police what has happening. When [the father] attempted to take [the mother’s] phone [the mother] recoiled from [the father] and said “Don’t hit me”. [The father] then left... with X and went directly home.
The father told the police that the parents had arranged that he would return X to her mother at Suburb J Police Station.
The next day, the mother called the police and told them that X had been returned without incident. The mother told the police that she hoped they would be able to conduct amicable changeovers in the future.
The police told the mother they would apply for an ADVO. She asked them not to.
The father sent the mother a text message saying:
I really can not believe you said “stop hitting her” when she was in my arms after you tried to illegally not allow me access to her again. You were lying and trying to make me look like I did something wrong.
The mother replied “I said don’t snatch her. You heard me wrong”.
The father responded:
You violated out [sic] agreement yesterday and you tied [sic] again today. Please let’s just be honest and fair and keep this out of the courts. It will cost us BOTH a LOT of money!!
You said “you can’t have her then started to take her away. I took her back – as is my right – then you said “stop hitting her”.
You’re sick Ms Zang and you need help.
I came there to get her 1 day after was our agreement. You violated our agreement then tried to do it again today. How can I trust you?
Great. Police disturbed [the landlord] downstairs again. Thanks for trying to get me evicted and destroy my life. God will strike you down Ms Zang.
Sophie did not give evidence.
Once again, on any version of the event, there was a physical altercation between the parents involving X and a tussle for possession of X.
On 12 June 2015, the father went to the police to complain that the mother had kept him waiting for hours to hand X over.
In mid-2015, the parents attended mediation and reached an agreement that the mother would deliver X to the father’s home on Friday at 6pm and he would return her to the mother at 6pm on Saturday at Suburb K Station, unless it was raining in which event the mother would collect her from the father’s home. X would have FaceTime contact with the father between 7pm and 7.30pm on Tuesdays.
X was with the father on Friday night and Saturday night on the weekend of Country B Fathers’ Day. He returned X to the mother’s home on Sunday afternoon.
The father alleged that, the following week, the mother refused to allow X to go with the father on Friday.
He texted the mother saying that he would bring X back on Saturday afternoon. The mother replied “You had X for the whole weekend last week and this week is my turn...”
The father replied:
... please don’t do this.
I will be calling relationship Australia tomorrow and the police to document this.
It really doesn’t look good on you.
You’re digging yourself a hole.
On …October 2015 there was another incident at the father’s home. Again, their accounts of what happened differ but, on this occasion, the whole incident was recorded and a transcript of the recording was tendered by the father. Both parties agreed that the transcript was accurate. Over the father’s objection, I allowed the audio recording to be tendered. The recording lasts for over 20 minutes.
On the morning of … October 2015, X was with the father. The arrangement was that he would return her to the mother at Suburb K Station. The father contacted the mother and asked her to come to his home at Suburb G to collect X. She agreed.
The mother’s version is that the father asked her to collect X from his home as he was packing to go to Queensland. The mother took her parents with her and decided to record the changeover. The father lived in an upstairs apartment in a shared house. When they arrived at the father’s home, the maternal grandparents waited outside the father’s door in the hall and the mother spoke to the father in the living room. The father wanted to discuss a resumption of the relationship. The mother did not. The mother was holding X. The father said “Give me the baby and get out of my house”. He attempted to take X from the mother. X was screaming, pushing the father away and shouting “No”. The maternal grandmother, hearing the screaming, intervened to attempt to take X. The father blocked her, pushing her away and saying “Get out of the house or I will kill you”.
The father pushed the maternal grandmother out of the premises. When she was near the front door he pushed her onto the ground. The maternal grandfather intervened to assist his wife. The mother and X were trapped in the room with X screaming.
The grandparents asked for assistance from neighbours who called the police. The assistant of the landlord, who lived downstairs, came upstairs. The father opened the door and the mother attempted to leave. The father blocked her exit. The assistant told the father that the police were coming and the father allowed the mother to leave with X.
The father was arrested.
The father’s version of the incident is that the mother came to collect X with her parents. They chatted in a friendly way. He had the impression that she “might be open to start trying to heal our broken marriage”. He asked her if she would move with him to L Town to start over without her parents. She said “No” and that the marriage was over. He said “Okay give me the baby. Give me the baby” and reached out to take X. The maternal grandmother stepped in and shoved him hard, pushing and pulling him violently. The maternal grandfather tried to hold the father’s arms as the grandmother pushed him. He yelled at the grandparents to get away from him saying “Get away from me. Get away from me. Get away from me you freaking”. X was yelling “No. No. No”.
The grandparents continued attacking the father. He pushed them out the door and closed it on them but there was no lock and the grandmother continued to push the door open. The father yelled at the grandmother “I’ll kill you. Get out of my house. Get out of my house. Get out of my house you fucking ruined my life”.
The father denied that he acted aggressively and has maintained that he was the victim of an assault by the grandparents.
The recording demonstrates that the mother arrived at the father’s home. X was pleased to see her. The parents chatted amicably with the maternal grandparents in the background. X sounds happy.
After almost eight minutes the father said to the mother “So I’m gonna move to the M Region”. The mother replied “If you want to. You can do whatever you want. I don’t care. You know I don’t care”. The father said, “If you like me taking the baby to M Region and [seeing] you...” At that point, X was distressed and cried out “Go, go, go, go, go, go. Mommy, mommy.”
There is further conversation. The mother asks if the maternal grandmother can use the toilet.
The parties provided to the Court an agreed written transcript of the event. Words said by the maternal grandparents have been translated into the English language.
About nine minutes into the conversation, the transcript reads:
Mother:All right I’m going to take my stuff and go ok? You decide what’s your life is, like, what you want to do with your life. I can’t tell you what to do. Look I can’t tell you what to do. You know I suggest many things but you never listen to me, and your life gets like…at this stage.
Father: Ok you know…
Mother:And it’s, and I don’t want to be part of it anymore
Father: Ok give me the baby. Give me the baby.
Mother: Hey don’t be that in front of…
Father: No
Mother: In front of…
Father:No this is it. If this is how it’s going to be, I’m going to keep the baby and it’s something she’s going with me. You are not going, you are not going to steal her from me. I’m not going to let you. Ok?
Mother: I don’t know what you are talking about
Maternal Grandfather: Ok stop talking
Father:It’s not going to happen. I’ll tell you right now. I’ve been extremely civil with you and you haven’t played fair from the beginning ...
At this point X says “oh go” and starts crying.
Maternal Grandfather: She knows
Maternal Grandmother: Ok
Father: Ok
Mother: No
Father: So give me the baby and get out of my house
X: [crying] Mum mummy
Father: Give me, give me the baby, give me the baby
Mother: Don’t do this
Father: I’m doing it
Mother: She’s pushing you
At this point X begins crying loudly. The transcript continues:
Mother: She said no. She said no.
X: [screaming] No no no
The father who had until this time been speaking relatively quietly began screaming at the top of his voice, loudly, hoarsely and hysterically.
Father:get away from me, get away from me. Get away from me you freaking …
Maternal Grandfather: Quiet. Quiet. Quiet. Quiet.
Father:[still screaming] I’ll kill you. Get out of my house. Get out of my house. Get out of my house. Get out of my house. …you fucking ruined my life. You fucking ruined my life.
Maternal Grandfather: Ok ok ok ok
Father:[still screaming] You fucking ruined my life. You’re not stealing my child from me.
Maternal Grandfather: Stay calm. Stay calm
Father:[still screaming] Get out. Get out of my fucking house
Maternal Grandfather: Stay calm. Stay calm.
X: [still crying] Daddy
Father:[still screaming] You fucking ruined my life you fucking…
X: [still crying] Daddy
Maternal Grandfather: Quiet quiet quiet
Father: [still screaming] Get out of my house
The audio recording was tendered to the Court and was listened to in Chambers. While the transcript was accurate save a few small errors, it is apparent from the recording that while expelling the maternal grandparents from his house, the father screamed “you ruined my life you fucking little devil.” I find that the father also referred to the maternal grandparents as “devils” on this occasion.
The recording suggests that the grandparents then moved away from the father and the mother. X can be heard crying loudly. The father starts to shout again threatening to call the police.
The grandparents (who do not speak English) can be heard frantically trying to call the police on the mobile phone and X can be heard still screaming in the background.
Neighbours intervened and called the police and the neighbour persuaded the father to let the mother and X leave.
Later in the recording the father is heard explaining to the neighbour that the maternal grandmother had attacked him and he had pushed her out of the door.
The version of this event in the police records states:
About 1.00 pm on the … October 2015, [the mother] and [sic] attended [the father’s] home with both her parents. [The mother] and her parents entered the house to take custody of the child there were nil issues with this from the [father]. [The mother] heard the child in the living room and picked her up holding her to the front of the body, the parents were both outside the room at this time. [The father] discussed with [the mother] there [sic] relationship, this discussion turned with [the father] becoming enraged his was voice raised and screamed “you fucking ruined my life”. [The father] grabbed at the child to to [sic] take hold of her so [the mother] could not leave. The parents who saw this feared for the safety of both the victim and the child attempted to intervene by moving in between [the father] and [mother]. [The father] pushed out at the mother and father with both hands, the mother was forced out of the room and fell down backwards landing onto her buttocks. [The father] shut the door preventing any person from entering the room. The parents made contact with the resident downstairs who was able to call Police. At this stage both [the mother] and her parents and [the father] had separated and waited down stairs for Police to arrive. Police arrived at the location and obtained a version of events from [the mother]. [The mother] expressed concerns that [the father] was unpredictable and she felt intimidated and scarred from this. [The father] was arrested cautioned and conveyed to … Police Station…[the father] made admissions that there was physical contact between him and the parents and he tried to push them out of the room.
The father was charged with assaulting the maternal grandmother.
On any version of that event, both parents agree that X was in the middle of it and extremely distressed, as the recording demonstrated.
Having listened to the recording I accept that the maternal grandparents and the mother were terrified after the father’s abrupt and inexplicable change in demeanour.
The father’s attitude and his statements on that day, and his explanations of his behaviour in the course of the hearing, are inexplicable. There was no suggestion that the mother would take X away from him. It was the father who was planning, on his own evidence, to move to L Town and it was the father who threatened to take X away from the mother to live with him in L Town.
The father’s behaviour was irrational and wholly uncontrolled. To adopt the characterisation of the recording which was given by the paternal grandmother, to which reference is made later in these reasons, the father’s anger and rage were totally out of control.
The father was charged with common assault in relation to the grandmother and the police took out an Apprehended Domestic Violence Order (“ADVO”) in relation to the mother and X.
The father did not evince any understanding of the effect of his actions on that day on the mother, on X or on the maternal grandparents.
Throughout the hearing, the father maintained that, by recording this event without telling him, the mother was “setting him up”. I reject that proposition. Nothing in the transcript or the recording could be interpreted as the mother goading or prompting the father to behave as he did.
On Friday 16 October 2015 the father sent a text message to the mother stating:
As I’m now staying temporarily at a friend’s place until our court date I can’t have X stay over. But I’d like to come spend a few hours with her on Saturday or Sunday. Can I come get her from your place or shall we meet at the Suburb J Police station? Either way is good for me.
The mother responded “All of us are too traumatised to see you at this stage”.
The father replied:
You can’t hide from your conscious [sic] or the truth…That’s one thing about this life. You can deceive all you want. And maybe you will be able to trick the justice system but you can’t lie to the eye in Skye. You’re only lying to yourself.
On 23 October 2015 the father messaged the mother saying:
I haven’t seen X in 2 weeks and I’d like to see her tomorrow. What time is convenient for me to come pick her up?
Thanks.
The mother responded:
I don’t feel comfortable giving X to you before the court case settle [sic]. I don’t want to have any incident anymore. Too too too much stress on me and X and my parents. You can call the police and let them check on X but I can’t meet you. You can find a third party who does supervised visits then I can drop X off there but I’m not handing her over to you just by yourself.
The father replied:
What you are doing is in violation of Australian law... Ignoring my communication is a further violation of our agreement. Just so you know.
Thanks.
On 9 November 2015 the mother messaged the father:
I will only feel comfortable if the visit is under supervision and I don’t need to meet you directly. Unfortunately no family or friends can do this for us at the moment I guess we have to use paid service. I did some research and found three contact centres. I will send you the link in a minute. You can do some research yourself and let me [sic] which one do you want to use.
The father replied:
I’m not sure what you mean by supervision?
If you’d like we can meet in a police station close to your house so you don’t feel uncomfortable with the handover.
The mother responded:
I sent you the link please check it out. I won’t let you have X by yourself as I don’t know what is going to happen. You may get into a fight with a stranger on the street or a shop assistant and she is going to witness that. Every time you lose your temper it’s always someone else’s fault which means you don’t take responsibility of your own action at all. Therefore I can’t trust you. It may sounds [sic] harsh to you but that is really my concern. If there is a third party there I believe it will be more under control and I will be less concerned. After 23 Nov the AVO court case settles, one of us can start court proceedings with family court. Since we have so much disagreement its’ [sic] better to let the court decide what is fair.
The father responded “Wow: You truly are insane. See you in court”. The texts from the father continued at length.
The mother ended the text exchange with a message which read “Please do not contact me anymore. I find your message manipulative and harassing. My solicitor will contact you soon in regards to child visits.”
Constable Wood made a statement for the purpose of the proceedings on 10 November 2015 in which he stated inter alia:
[The mother] informed us that she and her parents had attended the apartment of the [father] earlier that day to collect her child, which had previously been arranged. Whilst they were inside the apartment the accused began to argue with [the mother] about their relationship and attempted to stop her from leaving with the child by standing in front of the front door of the apartment. [The maternal grandmother] attempted to move the accused from blocking access to the front door of the apartment by pulling on his arm. The accused responded by pushing [the maternal grandmother] which resulted in [the maternal grandmother] falling to the ground.
The father pleaded “not guilty” at the first hearing of the assault charge on … November 2015. He was legally represented. An ADVO was made for the protection of the mother and X.
The father made a complaint about the conduct of one of the attending police officers and, when he was dissatisfied with the response of the police, complained to the Ombudsman. The father asserts that the police officer lied.
On 15 December 2015 the paternal grandmother sent a message to the father stating:
[The mother] sent me a recording of the confrontation you had between her, her parents and yourself.
I don’t know what to say to you. Your anger and rage was totally out of control.
You cannot blame others for your life. You have made all your choices and decisions. Your words and actions come from yourself.
You tend to think of yourself as always the victim. Why is that? Do you not think that your actions have consequences.
[The mother] is a good mother. You are a good father, but maybe you need to take a step back and take a good look at yourself. Where you are and where you are going. I think you need some counselling with your anger and negativity.
Stop blaming everyone else and start taking responsibility for yourself.
X deserves a stable home.
I am sure you will be very upset with me now and will once again say that I have never supported you. I can’t help it if that’s how you feel. I know I raised you with love and respect. If you continue to berate and bully [the mother] you may find yourself in a very bad situation.
I will always love you.
There is some confusion in the father’s mind about what happened when the matter was next before the Court on 21 December 2015. The father deposed that:
I did not put my argument to the court in a hearing and accepted a section 10(b) no admissions plea where the charges were dropped and no conviction recorded and consented to the AVO under the impression that X would not be on it.
The documents produced by the police indicate that the father, who was legally represented, pleaded guilty to assaulting the maternal grandmother, that no conviction was recorded and he was placed on a bond for 12 months.
The father tendered a copy of the bond. The document stated:
The offender is found guilty but without proceedings to conviction is directed to enter into a good behaviour bond for 12 months pursuant to Section 10(1)(b) of the Crimes (Sentencing procedure) Act 1999 and accept the following conditions:
…
TO COMPLY WITH AVO WHILE CURRENT
The father signed the document indicating that he accepted the bond.
The father complained about his legal representatives to the Legal Services Commission and also posted an offensive review about the law firm on a web site which concluded:
In a just world this F*#K would be rotting for life in prison but unfortunately Australia seems to tolerate this for whatever passive reason.
Also on … December 2015, a final ADVO was made for the protection of the mother and of X for a period of 12 months.
Throughout the proceedings, the father’s position has been that, by pulling his arm, in her attempt to remove X from the incident, the maternal grandmother assaulted him and that she was the instigator of the conflict.
If that is the case, then his frightening response was totally disproportionate to her action.
On 5 June 2016 the father wrote a letter, which was tendered in his case, to his solicitor. In that letter father stated:
I’m also looking to get the updated statement of facts from when I was arrested. I told [the lawyer] that the only was [sic] I’d agree to taking the common assault charge was if the statement of facts was changes [sic] so it read that [the maternal grandmother] had pushed me then I had closed the door on her and she may have fallen down.
Shortly after the incident on … October 2015, the father met and formed a relationship with Ms N. They commenced to live together in 2016 and currently live in a three bedroomed residence that they share with Ms N’s mother, Mrs P.
The mother’s application for parenting orders was filed on 22 December 2015.
When the proceedings were commenced, the mother proposed that the father have time with X for four hours each fortnight at a supervised centre. The father proposed that X live with him each week from after day care on Friday until 6pm on Saturday, graduating to alternate weekends when the child commenced primary school.
On 26 June 2016 the father sent a message to the maternal grandfather stating “Your Monster wife and daughter will Never take my daughter from me. The Truth will be seen and you will be punished.”
The father did not spend any time with X until the matter came before the Court on 26 October 2016, despite the mother’s suggesting that the father have supervised time with the child.
On 10 October 2016 the parties participated in a Child Responsive Conference and a memorandum was produced. The memorandum was tendered by the father. The Family Consultant stated, inter alia:
·X has spent no time with her father for 13 months. This is a significant disruption to their relationship. Due to her age and limited memory capacity, it is unlikely that X would have much familiarity with her father at this time. If X is to re-establish a relationship with her father, she would benefit from spending predictable frequent time with him, commencing with short periods and extending to longer periods.
·X will have been negatively impacted upon by her exposure to conflict and alleged violence between her parents and the consequent emotional states of each parent. This may make her more vulnerable to changes in her care arrangements.
·If X is to benefit from relationships with both her parents, she needs to feel safe and secure with each of them and when transitioning between them.
·[The mother’s] allegations about [the father’s] behaviour toward her, if accurate, indicate that [the father] may pose a risk to her and X, both physically and psychologically. [The mother’s] description of [the father], if accurate, might indicate that he has dysfunctional personality traits that might negatively impact his parenting capacity. X’s reintroduction to her father and recommencement of time with him would likely require supervision.
·[The father’s] allegations that [the mother] has lied and that he has been unjustly removed from X’s life indicate that it would be imperative to reinstate X’s opportunity to spend time with him.
·The parents reported that they are on a waiting list for intake with Q Contact Service. [The mother] said that she has proposed they use a private contact centre in the meantime and pay half the costs each but [the father] said that he cannot afford it.
·[The father] indicated that he does not believe it necessary to be supervised whilst spending time with X. He expressed frustration at the multiple delays which he considers have resulted in him not seeing X for over a year. He indicated some hesitation at going ahead with supervised visits.
·[The mother] indicated that she would consent to [the father’s] mother supervising his time with X, if she were to travel to Australia from Country B.
The Family Consultant recommended that the father have supervised time with X until it can be established that X is familiar with her father and able to seek comfort from him. Further she suggested that supervision would improve the mother’s capacity to support and encourage X’s relationship with her father. The Family Consultant recommended that further, comprehensive assessment would be required.
On 27 October 2016, Orders were made for the father to have contact with X at a supervised contact centre. An Independent Children’s Lawyer (“ICL”) was appointed for X.
As the mother’s lawyer left the Court on 27 October 2016, he was accosted by the father. The lawyer wrote to the father’s solicitors complaining of his “poor behavioural and containment issues” stating:
Your client’s behaviour then deteriorated markedly and, while spitting pieces of apple in anger, then proceeded to advise words to the following effect:
“You’re ruining my life, you’re ruining a child’s life.”
“She is on anti-depressants. She had another husband who fled the country to get away from her”.
The mother’s lawyer stated that the father threatened to “take you down” and said that he would be making a complaint “today”.
The father made a complaint about the mother’s lawyer to the Legal Services Commission and wrote numerous messages to the mother describing her then lawyer in offensive terms.
On 26 February 2017 the supervised contact between the father commenced at R Group. The records of the supervisors are in evidence.
The application form for inclusion in the R Group supervised contact service was forwarded to the father by R Group by email on 31 October 2016.
In about November 2016 the father sent a message to one of the mother’s work colleges referring to the mother as a “pathologically lying sociopath that has kidnapped my daughter”.
The records produced by R Group indicate that the mother signed the service agreement with R Group on 13 December 2016.
On 9 January 2017, R Group notified the mother that their matter had been removed from the waiting list, as the father had not complied with the deadline for his intake assessment. The next day, the father contacted R Group indicating that he wished to proceed with supervised contact.
The father signed the service agreement on 16 January 2017.
R Group conducted an intake assessment with the father on 16 January 2017. R Group reported:
At the start of the assessment, [the father] stated that he was writing a university paper about his experiences with the family law system as part of his degree. He referred to: being subject to “false arrest”, complaining to the Ombudsman, having his daughter “abducted”, and to “broken legislation”. He referred to experiencing “sexism” at O Group (FDR service) for which he also made complaints. He said “My voice is not heard”, “I have no voice”. The assessor assured [the father] that it was okay for him to include his experiences with our service in his thesis; she said “It’s your story to share”. [The father] refuted, “It’s not my ‘story’; I have facts”.
The father was asked to describe the most recent contact, which was the incident in October 2015, and his response was recorded in the following terms:
[The father] described the last contact he had with X. He said he had arranged a relationship counsellor for him and [the mother] but [the mother] stopped attending. He said he wanted to move to Queensland and wanted her to move with him to “work on” their relationship, he asked [the mother] to “promise” him that if he found a job in Queensland, she would move with him and “work it out”. He said he found out [the mother] audio recorded this conversation, and the ensuing fight. He said she told him “no, it’s over”, and he “couldn’t believe that she gave up so easily”. He said this conversation occurred “after the whole scenario where she set up me hitting my kid”. He said “I don’t believe in divorce”, and that the relationship “wasn’t a disaster”, “I couldn’t believe she wasn’t putting in more effort in”. He said that he told her “Well, if you’re not going to try, give me one more day with X”. He said when he reached for X, [the maternal grandmother] “grabbed” him, so he “started screaming ‘get out of my house’” to her, he said “she was pushing me and [the maternal grandfather] was pushing me”, he told [the maternal grandmother] “You’ve ruined my fucking life, I’ll kill you”. He said that [the mother] initially told police that [the maternal grandmother] grabbed [the father], then “changed the story”. He said police alleged that he said “Give me the baby or I will kill you”, but “I didn’t say that, I said ‘get out of my house’”; “I didn’t mean ‘I will kill you’”.
When asked whether the mother was scared during this incident, [the father] said “I don’t think so”. He said that [the maternal grandmother] “ruined my relationship and I resent her for that”. He said [the mother] would have been “thinking ‘great!’”; implying that [the mother] was pleased about the conflict as it would justify stopping the contact.
When asked about X’s response to the incident, [the father] said she was “crying” and saying “no, no, go”. He said X was sitting with him, and she saw [the maternal grandmother] grab him, so she was “yelling at grandma” to “go”. He said “She was on my side because my little girl loves me”. He said [the mother] misconstrued X’s response by saying that X was talking to him (telling him “no, go”), as opposed to telling the grandmother to go. When asked how he thinks X felt at the time, [the father] said “she was probably fearful”. When later asked to describe the worst incident of conflict or abuse, [the father] named this incident, “because X was there; she was crying”.
When asked what he thinks [the maternal grandparents] experienced during the incident, he said “I don’t know what they were thinking. They’ve never heard my side because they don’t speak English; they think I’m this horrible guy. They don’t know me”. He said that the grandparents “could have thought” that he was trying to “take X from them”, when asked what would have given them reason to think this, he said that “[the mother] would have told them that”.
The assessor noted:
[The father] said that “someone” advised [the mother] to “call the police a few times to make him [the father] disappear”. He said “no one wanted to do anything to help me”, “even after she was caught lying”, referring to the incident where [the mother] accused him of hitting X. He said “there’s no penalty now for anyone who lies about domestic violence”, “someone probably told her to lie”, because there would be no consequence. When asked who he thinks told her that, he said [the mother] “probably Googled how to get rid of … It’s pretty standard, from other fathers I’ve spoken to”. [The father] said “Now violence is [considered to be] all sorts of things like shouting”. When the assessor challenged [the father] that shouting is a form of domestic violence because it creates fear, [the father] said that “it’s subjective” because a person can state that they are fearful with “no evidence”. [The father] said “they’ve made [domestic violence] all these subjective things”, and the definition is “too broadened”. He justified “My ex would yell at me but I wasn’t frightened”. When asked whether he believed a person could be frightened by yelling, [the father] agreed “It could be. But to use that to justify abducting a child from a loving father…” The assessor challenged [the father] that X was frightened by the yelling. [The father] responded by saying that there is “sexism” in the system, he said staff at O Group were all female, and there should be more male staff in services. He said “the system is against men, it’s a 100% true”. He said “I was assaulted [by the maternal grandmother] but I was arrested”. The assessor told [the father] that in order to make things easier for X, he needs to let go of some of these concerns, as in the service’s experience of working with children, the outcome for children of high-conflict parents are poor. [The father] argued that the outcomes for children of sole parents are poor; implying that [the mother’s] decision to separate will have a detrimental effect on X. [The father] said [the mother] “started this war”. The assessor challenged [the father] that “something has to shift”; [the father] replied that “she has to shift”. The assessor reminded [the father] that he just referred to his co-parenting situation as “war” and that he needs to focus on reducing the conflict by reflecting on his own behaviour, rather than [the mother’s] behaviour.
The assessment report records:
The assessor expressed concern for the high level of blame [the father] was demonstrating. [The father] responded that he has not seen X for a year, so “shouldn’t I blame?”. The assessor challenged [the father] that blame prevents him from reflecting on his own behaviour, and takes attention off the child. [The father] responded in an incredulous tone “Attention of the child?!” [the father] said that supervised contact “makes me offended, and frightens me”. When asked what frightens him about supervised contact, he said “there is a cash-for-kids system”, “lining the pockets of judges and services with money”; “the mental health of children is not cared about”.
When asked to reflect on what it would be like for him to use the service, he said “It’s creepy to me”, “I find it offensive that I have to do this, there’s no allegations of abuse against my child”, “I have to pay to see my child, which is beyond sick”. He said that X is “already psychologically abused”, and referred to a negative impact on X “to see her dad being watched by someone, when she wants to be out playing, it’s the weekend”. He said X would prefer to play on the beach with him, as they did in the past. He said that X “already spends three days a week in childcare [referring to the child care centre setting of the contact centre]; that’s crazy to me. Where I come from parents raise their kids.” He said he agreed on X attending child care only two days per week.
When asked what impact, if any, contact will have on X, given that the last time she saw him involved a frightening incident, [the father] replied “It depends on what she’s [the mother] been teaching her, and my mother in law, I have no faith in her”. He referred to the potential for [the mother] to “brainwash” X, he said “every one of my friends says she’s a bad person, and controlling”. He said [the mother] did not allow him to go out with his friends, and only allowed him to leave the house with her permission, or if they went to church.
The assessor recorded:
The assessor acknowledged [the father’s] distrust of the family law system, and asked him whether he feels he’s able to work respectfully with the service. [The father] was advised that at times workers will say things that may challenge him, and will make recommendations to both parents where needed and it is essential that he is cooperative and respectful. [The father] agreed he could do this.
The assessor encouraged [the father] to consider whether he would be able to let go of blame from the past, if he is given more contact with X. [The father] said he was “ashamed” after receiving the AVO, because “I didn’t do anything”. He said it wasn’t until some time later that he spoke to a number of fathers who were in the same situation, i.e. and AVO was unfairly placed against them. When asked he said he met these men when working with tradesmen; he said “a lot of guys have these AVOs.” When asked about his desired contact arrangements, [the father] said “I’ll never be satisfied with every second weekend; it’s only four days a month”.
Under the heading “Observations during the assessment” the records note that “[the father] presented as highly combative towards and blaming of the mother throughout the interview.”
The father attended an orientation appointment on 19 February 2017. The contact worker reported:
I spoke about the importance of giving X a separation story that is non-blaming. [The father] refuted, “I can’t lie to her”. I asked him to consider how X would respond if he provided a separation story that implied blame on [the mother’s] behalf. And [the father] said that X would “be upset when she went back to her mum – because she would know her mother kept her from me”. I encouraged [the father] to give a separation story along the lines of – telling her he missed her and had wanted to see her. I said when she is older he might explain to her that her parents could not agree and others [i.e. court] made a decision for them and that he wanted to see her and had missed her. I said that our service and the Court would be looking at how each of X’s parents can focus on their own relationship with X, and how they support X to transition between her two parents, and whether they can move away from their personal feelings of hostility and blame towards the other parent and consider how these feelings may impact X and her relationship with both parents. [The father] refuted that their story is a “not non-blaming, there is blame. [The mother] did this”. He said that at some time in the future he would have to tell X the truth – i.e. that [the mother] kept her from him and that he has been “fighting” to see her. [The father] further said that he was going for “full custody now”, and plans to take her to Country B. He said something to the effect of “what’s that proverb?”, and words to the effect that X needs to know the truth even if it hurts (in the short term).
The visits were scheduled to be fortnightly on Sundays between 3pm and 5pm commencing on 26 February 2017.
When the father arrived for the first contact visit on 26 February 2017 he reiterated his frustrations with the family law system and with the mother for alienating X from him. The contact worker reported:
[The father] again spoke about not wanting to “lie” to X if she asks him “where have you been daddy?”. [The father] said he wanted to tell her “the truth”, which is “your mother has been blocking me from you”. [The father] did not agree that this story would damage X’s relationship with both parents; he said he believed it would strengthen her relationship with him, and help X understand the truth about her mother’s actions. When invited to give X an alternative story that would be less upsetting for her (e.g. “Daddy has really missed you and been trying to see you”), [the father] said he wanted to say that he had been “fighting” to see her. When advised that the phrase “daddy has been fighting” would be worrying for X, [the father] said that the suggested phrases “trying” or “working hard” were insufficient to describe his experience, and did not seem to accept that it would be inappropriate and damaging to X’s relationships with both parents to hear a ‘separation story’ that was blaming of one parent.
When X was brought to the centre by her mother she was initially reluctant to separate from her mother. The contact worker noted that the mother had brought snacks, toys and a paper crown that X had made to show her father and that the mother encouraged X to go and play with her father. X settled quickly with her father and the father spoke positively to the contact worker after the visit.
The next visit was on 12 March 2017. Again the mother was observed to be supportive and encouraging of X spending time with her father and the father made some positive remarks about the session.
On 26 March 2017 before the contact commenced, the father complained that, in the previous session, the supervisor had told X at the end of the session that she didn’t have to hug her father if she didn’t want to. The father said this comment was unnecessary and caused X to become uncertain. He said that the worker didn’t know his side of the story and probably thinks that he is a “wife abuser”. The supervisor commented that generally if a worker makes such a comment it is because the worker observes the child to be resistant or hesitant and the father maintained that the supervisor’s comment had been inappropriate. During the session, the supervisor commented that the father and X were involved in an imaginary play with the father following X’s lead, being attentive to her and appearing to delight in and enjoy X’s use of language and her ideas for play. The father encouraged X to say goodbye when it was time to leave and she appeared comfortable with allowing him to kiss her cheek and kissed his cheek in return.
In the contact visit on 9 April 2017 after X had played with her father for some time they engaged in an activity where the father found some alphabet stamps and decided to stamp X’s name onto the paper she was working with. The supervisor noted:
X objected to [the father] doing this but [the father] continued on. He lifted up each stamp and showed it to X who continued to object, stating that these letters were not her name. [The father] ignored her protestations and asked question such as “where is the R?” as he searched through the stamps. X’s objections increased and she stated many times over that she did not want him to put the stamps onto the paper, saying “I don’t like you doing this to my paper”. She stated “that’s not my name” to which he responded “of course it’s your name, I gave you this name”. This comment was made several times by [the father] who appeared intent on making the point to X that she had her name because of him. This exchange between them continued for several minutes before [the father] held up the piece of paper and proudly stated “X”. X became extremely angry and told [the father] that she did not want to play with him anymore.
When X’s reaction was later reported to the mother, the mother told the supervisor that X would not have recognized her name in capital letters as she only knew lower case.
The supervisor noted that X stated that she didn’t want to play with the father and moved away from him and sought out the supervisor. The supervisor started playing with X and the father approached. The supervisor reported:
[The father] stated “this is the problem with her…” I stopped [the father] and stated that we would have a conversation after the session was concluded. I continued to engage X in the activity… Over this conversation, [the father] again stated “this is the problem with X being raised in a toxic environment”. I again advised [the father] to desist and stated that we would have a conversation after the session. I instructed [the father] to refocus on X. [The father] responded by saying he needed to talk now and queried how his needs were to be met. The father called X over to him and she stepped up to him. He pulled her to him by her arm and lifted her onto his lap. As he did this, he stated that sometimes X had to listen to Daddy. X burst immediately into tears and held her elbow. It was evident that her elbow had been hurt when [the father] had pulled her. X was holding her arm and screaming. I moved up to [the father] and instructed him to put X down. [The father] told me “step back”. X was writhing in an attempt to get down but [the father] would not release her.
The records note that the supervisor called the senior contact worker and as she did so, the father continued to repeat to X that she needed to listen to daddy.
The supervisor noted:
He did not respond to her distress or attempt to soothe her. He did not query X as to her apparent injury. When [the father] realised that I had called [the senior contact worker], he allowed X to slide of his lap and again told X that she needed to listen to Daddy and she should not listen to strangers. I took this to be in reference to me.
The supervisor noted that the senior contact worker entered the room and the father immediately engaged her in conversation stating again that the problem was that X was being raised in a toxic environment. The supervisor asked X if she would like to come outside. The senior contact worker instructed the father to step outside to continue the conversation. X was sobbing.
The supervisor noted that X disengaged with her father, maintained eye contact with the supervisor and appeared anxious. The father called X back stating that she needed to see him as he would not see her for another two weeks. The supervisor noted that X continued to maintain her gaze with the supervisor and tried to return to her but was stopped by the father. The father attempted to engage X in a game and persisted despite her not answering his questions. He eventually stopped when he realized she was not going to answer. Eventually the father managed to engage X in play.
The supervisor noted her concern that:
[The father] remains unable to respond to X’s requests and needs and instead asserted his own. He was combative with X and staff and deflected blame onto [the mother] for X’s response to his behaviour. He was unable to self manage his emotions enough to calm X or check in on whether she had sustained an injury when he lifted her.
The supervisor noted “This case is not progressing well. I have serious concerns about [the father’s] behaviour” and she listed those concerns. The supervisor stated “[the father] may not be ready to engage in contact with his daughter. A more comprehensive psychological assessment may be required.”
The senior contact worker noted that she had a separate discussion with the father in relation to the progress of the session. In relation to the stamping of X’s name on the paper the father said that he had told X “it is your name” and words to the effect of “I’m your father and you have to listen to daddy.” The senior contact worker queried the father’s perception of why X hadn’t wanted him to stamp her name on the paper. She asked:
“Why do you think X responded that way? Did she not want someone to write on her craft page?” [The father] explained that “it is the father’s role to discipline”, and that “I have to discipline X if she might be endangering herself, or when she is being selfish”. He positioned X as being selfish for not wanting him to spell her name on the paper with stamps. [The father] directed blame and responsibility for X’s “selfish” behaviour at [the mother] – explaining that [the mother] “mollycoddles” X, that at [the mother’s] home X can do “whatever she wants” and no one “says no” to her. [The father] explained that [the mother’s] lack of teaching X “not to be selfish” was “cultural” for [the mother] and added to this argument that [the mother] is “35 and still lives with her parents”.
The senior contact worker noted:
I attempted to explain to [the father] that it was important for him to focus on his own parenting; that he can only manage his own parenting and not [the mother’s] parenting, and that X would learn to respond to different parenting styles. I said that all children from separated families adapt to the differing parenting styles of each parent. [The father] maintained blame towards [the mother], commenting, “I don’t expect this to end well” and appeared to position himself as powerless, because he felt that [the mother’s] inadequate parenting would not change. He spoke about [the mother] being “mentally unstable” and in need of supervision herself.
The senior contact worker said that the father told her that the supervisor could have supported him and told X that she had to listen to her father instead of calling the senior contact worker.
The senior contact worker asked the father if he had any ideas about how he could repair his interaction with X and the father suggested that contact staff could return to the room and instruct X “you have to listen to your father”.
The senior contact worker noted that after the session the father continued to make blaming comments about the mother’s parenting referring to her as “mentally unstable”. The senior contact worker asked the father whether he might consider seeing a counsellor and he replied with words to the effect “I don’t need to… they’ll make me feel better for a while, but nothing will change”.
On 11 April 2017 there was a case discussion with the coordinators and the program manager at R Group in relation to the termination of the father’s visits. The record notes:
The father has not responded to the service’s attempts to have him contain his blame/hostility and move towards child-focussed/emotionally safe co-parenting.
Ongoing concerns about the father’s intensity of hostility and blame towards the mother, in most interactions with staff (before and after visits). The father positions himself as the victim, and the mother as the aggressor/abusive towards X, and adopts a powerless position – has demonstrated no responsibility-taking or willingness to engage with therapeutic intervention or reflect on his behaviour. Father has sent blaming/hostile emails to the mother since visits commenced.
Concerns about the father’s mental health, given significant level of blame and distrust of systems and services – service recommends a psychiatric assessment prior to any further supervised contact. The service also recommends that the father complete a men’s behaviour change program…
Father seems unable to privilege X’s emotional safety/wellbeing over his own emotional needs, and demonstrates a lack of understanding of X’s developmental needs….
On 12 April 2017 R Group made a mandatory risk of significant harm report to the Department of Family and Community Services.
The notes comment:
The mother has demonstrated support for X to build a relationship with her father, and actively supports X to attend & enjoy visits. The mother appears to appease the father at times, e.g. by applying a Country B flag temporary tattoo to X for the first visit.
On 18 April 2017 R Group wrote to the father stating:
This letter is to inform you that the Q Contact Service is terminating further contact visits, effective immediately. The reason for this decision is that you breached the Service Agreement, which states:
Children’s contact services will be discontinued if:
· A parent persists in discussing inappropriate topics in front of children, other service users or stuff.
and,
· please note that some breaches of the service agreement may warrant immediate suspension, including but not limited to:
· engaging in conflict in the presence of a child,
· concerning behaviours which are identified as risking the safety and wellbeing of children, stuff or other parties
On the visit dated 9 April 2017, you did not follow X’s play, and continued to inappropriately direct her, despite the contact worker redirecting this interaction. You then expressed blame and hostility towards the mother in front of X, and restrained X on your lap, despite X becoming highly distressed, You became antagonistic towards the contact worker when they instructed you to desist.
Further, in multiple conversations with staff, the service is concerned that you maintain a high level of blame and hostility towards X’s mother…; this can impair a parent’s capacity to move towards child-focussed, emotionally safe co-parenting.On 18 April 2017 the father telephoned R Group having received the letter relating to the termination of visits. The father repeatedly said that it was “obvious” that the supervisor wanted to “seek revenge against me” and he complained about her conduct. He referred to the supervisor as a “feminist, man-hating” person whose “goal is to ruin as many men’s lives as possible”. The father said “you have no idea what this is going to do”, “you have destroyed any chance of me seeing my daughter ever again”, “you’ve put the nail in my coffin”, and he said he has “no options” left as private contact services were unaffordable.
The person who took the call noted:
[The father] referred to X avoiding him during the previous visit, and said “obviously her mother…is feeding her manipulative and toxic information”. He said our service was “my daughter’s only chance to get away from a psychotic parent”. [The father] said the incident (X moving away stating “I don’t want to play with you, I’m not your friend”) showed that X was “developing a personality disorder”. He said “I got lured into a trap; children should not be able to tell their daddy “Don’t do that to me or I won’t be your friend”; he said it was a problem when children did not “obey their parents” and “listened to strangers”. He positioned the service as terminating visits simply because X “cried”.
When the contact worker advised that the centre did not share his views and reinforced that the decision to terminate the visits had been made by the service, not by the supervisor, the notes record:
[The father] became agitated at one point, he said “you’re sick, you’re sick and twisted”, and that our service was “profiting as everybody else is, along the way”. He said we were “nice” to clients and then “behind your back” we “send sneaky lies”. At the end of the conversation he said “I was trying to save my child from a schizophrenic women and you’ve betrayed me”, “I thought you were on my side”, “I’m disappointed in you”; he then ended the call.
On 28 April 2017 the father sent an email to the contact centre attaching a number of photographs of himself and X. The email stated “Her name is X. She loves her father and wants to be with him. Because of you and people like you she has been torn away from him. And all for money $$$”.
On 3 May 2017 the father posted a review of R Group Sydney on the Facebook page of the organisation in the following terms:
My ex-wife kidnapped my child after her mother physically assaulted me; I’m a man so I was arrested for defending myself for closing my door which struck her…as she was smashing it; this lead [sic] to a restraining order.
I waited through court appearance after court appearance for something to happen only to be told that I had to obey my ex-wife’s demands: Extremely expensive supervised visitations.
My only option was R Group (Nothing Biblical About It) as I am a student; studying at the Y University and can’t afford the other options which were twice expensive.
As predicted; All staff are female, they are mostly single, most of them are over weight, about half are gay, most of them hate men and have some kind of revenge in mind and they ALL belong to the far political left.
Follow your instincts men; this is a TRAP.
And guess who is paying them to persecute you and screw your children? YOU ARE!!!! Comes out of your taxes.
Absolutely no fucking way!!!!!!!!!!!!!!!!!!!!
This is war.
(As per the original)
As a consequence of the withdrawal of the services of R Group, the father did not spend time with X.
On 27 May 2017 the father called the contact centre and left a message to the following effect:
I just read through my ex-partner’s affidavit and she is saying now that you at R Group have said that I was physically – I could be a physical threat to my daughter and you’ve forwarded her advice on how to protect my daughter from me, and from her, I’ve breached protocol yada yada yada.
This is defamatory, based on what happened there was actually no threat whatsoever; that’s documented.
I have two documented cases where I made complaints about this particular case worker...
So I’m just putting you on notice that I will be taking you, I will be prosecuting you for defamation. I have it all – it’s clear black and white case of defamation.
So just buckle up you are in for it, for some real serious litigation here.
It’s personal between you and I, and between your corrupt boss who is stealing from the taxpayer in order, to you know, line your pockets at the expense of children’s lives.
I’m taking you down, and your boss, you corrupt, bogan, trash.
Dr V observed that although X’s relationship with her father was identified to be important, he was not given the opportunity to observe it.
The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The mother asserts that the father has not provided financially for X and that he did not do so while they were together.
The father denies that he did not provide proper support for X while the parties lived together.
He tendered bank statements demonstrating that he had $2,219 in a bank account for X.
However, since the end of the marriage, he has refused to provide financial support for X although he deposed that he has, when he was able, deposited money in account for her which he retains. In his affidavit, he stated that he would not provide financial support for X until he has “a normal custody arrangement”.
Dr V stated that refusal to provide proper financial support for a child suggests that a parent has failed to demonstrate a responsible approach to parenthood.
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;
X has not now spent time with her father since January 2019.
If contact is re-instated and is again suspended X will experience the loss of her relationship with her father again.
If it is likely that the contact regime cannot be sustained, then it may be best for X that a resumption of the contact is not attempted.
The father in cross-examination, said that he would not have contact with X in a contact centre. He proposed no other supervisor.
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;
On any version of events, where each parent accuses the other of family violence and X has been present at distressing events, it is clear that contact cannot take place in circumstances where the parents meet face to face.
The maternal grandparents and the father also accuse each other of family violence and they could not be involved in facilitating contact.
There is no mutual, trusted friend or relative who can assist.
The only feasible means of facilitating contact between X and the father is by the use of professional supervision.
Two separate professional contact centres have refused to continue to supervise.
The father puts forward no feasible alternate mechanism for contact to occur.
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;
Dr V commented that X’s positive attitude towards her father, at the time he saw her, was indicative of the capacity of the maternal family to support her relationship with him, despite their allegations of physical and emotional abuse by him. Dr V viewed that fact as encouraging. He stated:
Should their approach have been otherwise, it would be unlikely that X would express a positive attitude towards him and his partner.
The mother, in cross-examination by counsel for the ICL said that she maintains a relationship with the paternal grandmother and has no objection to her visiting X. The mother said she sends photographs of X to the father and gives him updates about her progress.
There is no evidence that the father is capable of putting aside his resentment of the mother because, in his mind, she has deliberately embarked upon a course of action to alienate X from him.
The father was given a number of opportunities in the course of his cross-examination to acknowledge his contribution to the situation in which he now finds himself, but he was unable to do so.
The mother, in cross-examination by the ICL, said that when she sends photographs of X to the father, or as she recently did, a Father’s Day card from X, he responds by email being critical of her.
The mother was unable to envisage a situation where she and the father could communicate about X without him being verbally abusive, blaming and critical of her. She said that, in the period leading up to the hearing she had received daily emails from the father, critical of her and the Family Court and describing her as a “child abuser”.
It was the tenor of his evidence that the mother and the maternal grandmother are solely to blame for the unacceptable behaviour on his part.
It is notable that the paternal grandmother, in her email dated 15 December 2015 referred to the father’s perception of himself as a victim, as did both the mother and the maternal grandmother in answers given in cross-examination.
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’s cultural heritage is Chinese on the maternal side and North American on the paternal side.
If she is not able to spend time with her father and have a meaningful relationship with him, she will not have the opportunity to experience his culture.
The mother gave evidence that she remains in contact with the paternal grandmother in Country B but there is no evidence that X has met any other members of the paternal family.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
There is no doubt that the father loves X and wants to be a good and loving father.
However, there is no evidence that he is able to put aside his hostility and negative attitude towards the mother, the maternal family, and any other person or agency he perceives to be standing in his way, so as to ensure that X is not harmed.
Any family violence involving the child or a member of the child's family;
Family violence is defined in the Act in the following manner:
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The father’s conduct towards the mother and the maternal grandparents, in X’s presence, constitutes family violence.
I accept that when the mother slapped the father’s face in 2012, and when the grandmother attempted to intervene on … October 2015, those acts can also be characterised as family violence but they pale into insignificance when compared with the father’s behaviour.
The father has pleaded guilty to assaulting the maternal grandmother and been placed on a bond. A court has found it necessary to impose and ADVO upon the father for the protection of the mother, albeit without admissions.
The presumption in favour of equal shared parental responsibility has been rebutted.
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 ICL submitted that an order along the lines proposed by the mother, that the father have contact with X as agreed in writing would subject the mother to a barrage of hostile communication from the father.
I accept that submission.
The mother sought an order that the father not go to X’s school. Having regard to the findings I have made about the father’s volatility and his behaviour when crossed, it is not appropriate that either the mother or X be put in a position where there might be a conflict at X’s school between the father and the mother or any other person.
The father will be restrained from attending at the school.
The father in submissions, asked to be given an opportunity to demonstrate that he is the good father he knows himself to be.
He has already been given two such opportunities, with two separate supervised contact services, and has failed on each occasion. There is nothing in the evidence that suggests that he would behave differently if given another opportunity. Any further provision for the father to spend time with X has the potential for further conflict and further litigation.
Professional supervision was insufficient to prevent X’s being exposed to the father’s aggressive and combative behaviour. He was unable to regulate his behaviour in the S Contact Service even though it must have been clear to him, after R Group terminated their services, that he was required to do so if his visits with X were to continue.
The father sent an email to the mother in 2017 saying that he would “never settle for visitations. The absolute minimum will be shared custody and every other weekend”. I understood the father to be indicating that he would not accept supervision. In cross-examination, he said that, if the outcome of the proceedings was not in accordance with his wishes, he would consider returning to live in Country B.
I can have no confidence that the father would accept a regime of supervision; that any agency would agree to supervise; or that if supervision occurred, the father’s behaviour would be any different from that which he has previously displayed.
PARENTAL RESPONSIBILITY
There is no possibility of effective communication between these parents. The father’s attitude towards the mother is relentlessly negative and unlikely to change.
The mother should not be required to enter into discussion or negotiations with the father in those circumstances.
She will have sole parental responsibility.
The mother also sought orders enabling her to obtain a passport for X and to travel with her overseas without obtaining the father’s permission.
Although no submissions were addressed to this application it is clear that the mother is an Australian citizen who owns a home in Australia. Her parents live in Australia.
There is no evidence that she would remove X from the jurisdiction permanently.
It is appropriate that she should be able to travel overseas with X.
PROPERTY
The mother sought an order that each party retain the property in his or her possession.
The father sought payment to him by the mother of the sum of $71,583.
The basis of the father’s claim is set out in his trial affidavit and it is convenient to set it out here, in his own words:
I would like there to have been a division of the total net asset pool of marital property of 75% in favour to [the mother] and 25% in favour of the [father]. But as [the mother] has sold the property it may be easier to break the division down as follows:
As there was $317,000 profit after the sale of the Suburb D property and I was married to the [mother] for roughly 2.5 years of the 8 years that she owned this property; I propose that half of the profit derived from the increase in property value for 1/3 of those 8 years be forwarded to me i.e.: $317,000/2 = $158,500/3 = $52,833.
There was a profit of $250,000 after the sale of the Suburb I property. As I was married to the [mother] for roughly half of the time that the property was in the [mother’s] name in which time the value increased by $125,000. Of this profit I propose that 15% be forwarded to me i.e.: $125,000*.15 = $18,750.
I propose that the applicant forward to my chosen bank account within 21 days of settlement the sum of $71,583...
The father also sought an order that the mother pay his costs which he characterised as Legal fees, Visitation Fees and Damages.
There is no power under the Act to make an order as to damages.
Any application for legal fees to be paid must be made, in the circumstances of this case, within 28 days after judgment has been delivered and orders made and pursuant to the provisions of section 117(2A) of the Act.
The father’s application for the mother to pay the costs of supervised visits will be considered separately.
It must first be observed that the basis of the father’s calculation misunderstands the principles to be applied in determining an application for property settlement. As Gibbs J. observed in Mallet & Mallet (1984) 156 CLR 605:
First, the court must consider the extent to which either party has in the past contributed to the acquisition, conservation or improvement of the property; the contribution need not have been financial, but may include "any contribution made in the capacity of homemaker or parent": see s.79(4)(a) and (b). Secondly, the court must consider all those circumstances which relate to the present and future needs, and to the means, resources and earning capacity, actual and potential, of the parties: see s.79(4)(d) and s.75(2)(a)-(m); these circumstances include "the need to protect the position of a woman who wishes only to continue her role as a wife and mother" (s.75(2)(l)) and "the effect of any proposed order upon the earning capacity of either party": see s.79(4)(c). In addition, the court may take into account "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account": s.75(2)(o) and s.79(4)(d). It is not necessary in the present case to consider whether this includes the fault or misconduct of either party. The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved - those things are left to the court's discretion, which must, of course, be exercised judicially.
The parties commenced co-habitation in April 2013 and separated in December 2014, a total of 20 months. They were not divorced until July 2016, however the relevant period is the period over which contributions were made, not the period during which they were legally married.
Although the father contends that separation occurred later than that date, it is not in dispute that, in November 2014, the mother left the home they occupied in Adelaide and moved to Sydney. Although the father also moved to Sydney shortly thereafter, they did not thereafter live together.
In 2009 the mother purchased a unit at Suburb D for $453,000. The mother’s parents, who were then living in China, contributed $80,000 towards the purchase and the mother contributed $16,000. The mother paid the mortgage payments with the assistance of rent from the tenant of the second bedroom. The mother’s parents deposed that they considered themselves joint owners of the Suburb D unit by virtue of their contribution. In August 2013, an agreement was drawn up whereby the mother acknowledge that her parents owned 83.3 per cent of the Suburb D unit in recognition of their contribution of that portion of the deposit.
In about September 2012, the mother entered into a contract to purchase a unit in Suburb I “off the plan” for $550,000. The mother’s parents provided the whole of the deposit of $55,000.
At the commencement of the co-habitation, the mother owned the property at Suburb D, subject to mortgage, and was the co-purchaser with her parents of another property “off the plan” at Suburb I and owned a car. She was working and earning $77,500 per annum.
The father was in Australia on a working holiday and had no assets of significance. His visa was about to expire. He was working in hospital administration.
After the marriage they lived in the Suburb D property, sharing with the tenant and the mother’s parents. The father paid $150 per week towards his costs of living. The mother paid the mortgage payments and the utilities from her salary.
In about August 2013, the parties moved into rental accommodation at Suburb C. The mother rented out the remaining bedroom at Suburb D and used the rent to service the outgoings on the property.
X was born on 5 November 2013. The mother commenced maternity leave shortly before X’s birth.
The father left his employment in March 2014.
In April 2014, the parties moved to Adelaide. Their only source of income was the mother’s Centrelink benefit. They lived in rented accommodation.
The father asserted that they had savings in addition to the Centrelink benefit. That is not evident from the bank statements that he tendered. On 30 April 2014 the father’s bank balance was 71 cents. On 30 May 2014 the balance was $37.16. On 30 June 2014 the balance was -$1.91. On 31 July 2014 the balance was $43.98. On 29 August 2014 the balance was $33.17.
In August 2014, the father borrowed $4,000 from his father to start a produce business.
The maternal grandmother lent the mother $10,000 to start a retail business in Adelaide. The maternal grandmother lent the father $1,500 for his business. There is no evidence that either amount has been repaid.
They both worked in both businesses. There is no evidence that either business ever made a profit.
The mother left Adelaide and returned to Sydney in November 2014. She moved into the Suburb D unit with her parents. On 24 December 2014, the father left Adelaide and returned to Sydney. He spent three days at the Suburb D unit and then moved to rented premises. Thereafter they lived apart.
The mother returned to paid employment. The maternal grandmother cared for X when she was not in day-care.
The bank statements tendered by the father show that he commenced to pay money for X’s support in May 2015 when the statements show withdrawals for childcare. He made a number of payments of $132. Between May and the end of July 2015, the father asserts that he paid a total of $1,560. The mother admits to receiving about $1,500. She also admits receiving a further sum after she filed the divorce application of about $1,500. In all the mother concedes that she received $3,664 from the father for X’s support.
The mother refinanced the mortgage on Suburb D a number of times, using the proceeds to buy a car, to assist her parents in obtaining a Contributory Parents’ Visa, to pay living expenses and legal costs and to pay the deposit and stamp duty on the purchase of the property where she currently lives (“the residence”).
In September 2015, the mother purchased the residence “off the plan” for $1,040,000. The mother’s parents provided $280,000 and the balance was raised by mortgage. The mother initially met the mortgage payments using money from the redraw on the mortgage over Suburb D.
In October 2015 the purchase of the Suburb I Unit was settled. By this time, the maternal grandmother had been granted permanent residence. The mother and the maternal grandmother entered into a contract whereby the maternal grandmother became the owner of a 95 per cent interest in Suburb I. The title search shows the maternal grandmother as owner as to 95 per cent as tenant in common with the mother. The balance of the money required to settle the purchase was provided by the maternal grandmother. The mother provided no funds for the purchase.
The mother and X live at the residence with the maternal grandparents.
In February 2016 the father opened a bank account in his own name for X and started depositing money into that account. The mother had no access to that money. The father told the mother that he would not be giving her any money for X’s support until he regained a “normal custody arrangement”. At the time of the hearing that account held $2,219.
In September 2017, Suburb D was sold for $770,000. After repayment of the mortgage and the costs of sale, the net proceeds of $153,000 were paid to the mother’s parents. The maternal grandmother deposed that her share of the proceeds of sale of Suburb D should have been $337,000 but that amount had been reduced by the funds drawn down by the mother. She deposed that she considers that the balance is owed to her.
In October 2017, Suburb I was sold for $714,000. The whole of the sale proceeds were retained by the maternal grandmother. The amount required to discharge the mortgage was $426,628. Doing the best I can on the available evidence, assuming the costs of sale were about $20,000, the maternal grandmother received about $267,000. She had already advanced $280,000 to the mother for the purchase of the residence.
By the end of 2018, the mother was unable to keep paying the mortgage on her residence and she has negotiated a reduced payment plan with the mortgagee.
ASSETS AND LIABILITIES
There was no evidence of the value of the mother’s residence. It had not been valued, perhaps because the father made it clear that his claim related only to the properties at Suburb D and Suburb I.
From their respective financial statements, it appears that the assets of the parties are:
Mother’s assets
Residence (estimated value not agreed) $870,000
Bank accounts $1,393
Household contents $20,000
Superannuation $60,228
Total $951,621
Mother’s liabilities
Mortgage $752,352
Loan from parents $563,954
Credit cards $3,598
Total $1,319,904
Net assets ($368,283) DR
Father’s assets
Westpac Bank $154
Westpac Bank (Savings for X) $2,219
Vehicle $E4000
Cleaning Business $1,000
Household contents $300
Superannuation $9,923
Total $17,596
Father’s liabilities
Loan $11,863
Net Assets $5,733
The father disputes the value asserted by the mother for her residence. Although there is no admissible evidence of value, I note that the purchase price was $1,040,000 and it is unlikely that the present value is any less.
For the purpose of this application, I propose to adopt that value. This would have the effect that the mother’s net assets would be $198,283.
I note, however, that this amount is considerably less than the sums that have been provided by her parents for the purchase of her various properties from time to time.
CONTRIBUTIONS
The father’s contributions to the assets in the mother’s name were minimal.
He made no contribution to the acquisition of the assets or to their improvement.
He paid $150 per week towards their expenses between April 2013 and August 2013 when they moved to rented premises in Suburb C. He does not assert that he made any contribution to the costs of the mother’s properties while they lived in Suburb C.
From March 2014 until August 2014 the father had no income.
From August 2014 when he started the produce business, there is no evidence that there was any profit. He does not claim that he made any contributions to the mother’s properties after August 2014.
The parties separated in November 2014.
After separation he paid towards X’s support but I am unable to find that he contributed, between May 2015 and the present time, a period of more than five years, more than the amount of $3,664 which the mother admits receiving.
The father’s contributions do not warrant any adjustment of property interests in his favour.
SECTION 75(2)
The mother is required to house herself and X.
The father makes no contribution to X’s costs. In his trial affidavit, he deposed that, since February 2016, he puts $50 per week into a bank account for X when he is able, but he will not give that money to the mother, “until I regain a normal custody arrangement of X and Court is finished”. The husband deposed “I will never pay [the mother] any money as long as she continues withholding access of my daughter”.
In cross-examination, he said that he would pay child support if he spent time with X in accordance with his proposal. He is considering leaving Australia if he is not permitted to spend time with X and returning to Country B.
The father has been assessed by the Child Support Agency to pay $8 per week. The mother deposed that he does not pay that amount.
It is unlikely that the father will ever make any meaningful contribution to X’s support.
The mother’s current income, excluding her parenting payment, is $430 per week or $22,360 per annum. She has not re-partnered.
The father’s current income is $39,000 per annum. He has a cleaning business. He has been in a relationship for the past three years with Ms N who is employed as a student counsellor at a tertiary institution. She earns $46,488 per annum.
CONCLUSION
This is not a matter where it is appropriate to make any adjustment in favour of the father.
The overwhelming contributions to the mother’s property were made by her parents. The residence in which she currently lives was purchased after separation and the equity at purchase was contributed by the mother’s parents.
Any adjustment for which the father might contend is outweighed by the fact that the mother will have the sole burden of X’s support for the foreseeable future.
The father’s application will be dismissed and orders will be made in accordance with the mother’s application.
COSTS OF SUPERVISION
In submissions, I understood that the father withdrew the application for the mother to pay the costs of supervision already incurred. However, if I am in error about that concession, I would not make that order.
The father deposed that he has paid $1,320 to the S Contact Service and $600 to the Q Contact Service.
These payments were made at a time when he was not making any contribution to the costs of supporting X.
It is not appropriate that the mother reimburse him for those costs.
I certify that the preceding four hundred and eight (408) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 22 October 2019.
Associate:
Date: 22 October 2019
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
0