ZAWADZKI & ZAWADZKI
[2014] FamCA 238
•9 April 2014
FAMILY COURT OF AUSTRALIA
| ZAWADZKI & ZAWADZKI | [2014] FamCA 238 |
| FAMILY LAW – CHILDREN – With whom the children live – With whom the children spend time – Risk – Parental responsibility – Where each parent seeks an order for sole parental responsibility – Where there have been allegations of sexual abuse against the father – Where the father has been spending supervised time with the children – Family Violence. FAMILY LAW – PROPERTY SETTLEMENT – Financial Contributions – Non-financial contributions – Post-separation contributions – Where at the time of trial contributions were equal – Where an adjustment pursuant to s 75(2) is appropriate. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65AA, 65D, 65DAB, 75(2), 79. |
| Bevan & Bevan [2013] FamCAFC 116. Bolger & Headon [2014] FamCAFC 27. Cerini & Cerini [1998] FamCA 143. Cox & Pedrana (2013) 48 Fam LR 651. Dickons & Dickons [2012] FamCAFC 154. Farmer & Bramley (2000) FLC 93-060. G & G (1984) FLC 91-582. Kouper & Kouper (No 3) [2009] FamCA 1080 Lovine & Connor and Anor (2012) FLC 93-515. M & M [1998] FamCA 42. M v M (1988) 166 CLR 69. Mallet & Mallet (1984) 156 CLR 605. Norbis & Norbis (1986) 161 CLR 513. Omacini & Omacini (2005) 33 Fam LR 134. Stanford & Stanford (2012) 247 CLR 108. Steinbrenner & Steinbrenner [2008] FamCAFC 193. Watson & Ling [2013] FamCA 57. |
| APPLICANT: | Ms Zawadzki |
| RESPONDENT: | Mr Zawadzki |
| INDEPENDENT CHILDREN’S LAWYER: | Brisbane Family Law Centre |
| FILE NUMBER: | BRC | 1604 | of | 2011 |
| DATE DELIVERED: | 9 April 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Hogan J |
| HEARING DATE: | 4-7 March, 3-5 and 12 April 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Linklater-Steel of Counsel |
| SOLICITOR FOR THE APPLICANT: | Parker Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Frizelle of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Irish Bentley Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Andrew of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brisbane Family Law Centre |
Orders
IT IS ORDERED BY WAY OF FINAL ORDER THAT
Parenting
All previous parenting Orders be discharged.
Clause 1 of the Order made by Kent J on 10 December 2012 is discharged.
The children B born … 2006 and C … born 8 August 2008, (hereinafter referred to as “the children”) live with the Mother.
The Mother have sole parental responsibility for all major long term issues relating to the children, however the Mother shall, prior to making the sole ultimate decision about any such issue:
(a)use her best endeavours to advise the Father in writing of the decision intended to be made;
(b)seek the Father’s written response within three (3) days in relation thereto:
(i)consider, by reference to the best interests of the children, any such response prior to making any such decision; and
(ii)advise the Father in writing as soon as reasonably practicable of her ultimate decision.
The Mother keep the Father informed in writing by way of email to an email address to be nominated by the Father, about decisions made in the exercise of her sole parental responsibility and matters relating to the children generally.
The Mother have sole parental responsibility for the day to day care, welfare and development of the children when they are living with her.
Time with Father
The children spend supervised time with the Father as and when agreed between the parties and failing any agreement, as follows:
(a)on one occasion each fortnight at times facilitated by D Contact Centre at Suburb E; and
(b)each party shall attend intake interviews at D Contact Centre forthwith, or as directed by the Contact Centre, to ensure supervised time commences as soon as possible; and
(c)any costs associated with the supervision of time shall be paid by the Father.
In the event that D Contact Centre is unable to continue to supervise the children’s time with the father:
(a)the Father shall provide the Mother with a list of three (3) other Contact Centres able to supervise the time; and
(b)the Mother shall select a Contact Centre from the list provided and notify the Father of her selection within seven (7) days of the provision of the list; and
(c)each party shall, within seven (7) days of the date on which the Mother notifies the Father of the selected Contact Centre, arrange to attend the first available intake session at that Centre and do all things necessary to ensure that the children’s time with the Father at that Centre commences as soon as possible; and
(d)the Father shall pay any costs associated with the Centre’s supervision of the children’s time with him.
The Father have telephone communication with the children once each week on a Sunday from 6.00 pm to 7.00 pm with the Father to initiate the call to a telephone number provided by the Mother.
During the time the children are with either parent and during telephone communication, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that the others do not denigrate or insult the other parent in the hearing or presence of the children.
Exchange of Information
The parents shall:
(a)keep each parent informed at all times of their contact telephone number and email address and to notify the other parent of changes made to those details; and
(b)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children.
By this Order, each parent is at liberty to obtain information from any service provider or educational facility for the children including but not limited to school reports and newsletters.
The Mother and the Father are hereby restrained from discussing these proceedings with the children, discussing the allegations/disclosures made by the children about the Father or showing to the children any document connected with these proceedings.
In the event the Mother intends to take the children out of the Commonwealth of Australia she shall:
(a)provide the Father with no less than 28 days’ notice in writing of such intention; and
(b)no less than 28 days before the intended date of departure, provide the Father with:
(i)a copy of the return ticket evidencing the children’s departure from and proposed return to the Commonwealth of Australia; and
(ii)a copy of an itinerary detailing those places which the children will visit, the proposed accommodation, and postal and telephone contact details (both landline, if available, and mobile) on which the children can be contacted during their time outside the Commonwealth of Australia.
The Court requests that the Australia Federal Police remove the names of the children B a male born … 2006 and C a male born … 2008 from the Airport Watch List at all points of international arrivals and departures in Australia.
The Independent Children’s Lawyer is discharged.
IT IS FURTHER ORDERED THAT
Property
The sum of $84,644.20 from the funds held in Steadfast Solicitor’s trust account be forthwith released to the Applicant by way of trust account cheque in favour of her solicitor’s trust account.
The sum of $28,355.80 from the funds held in Steadfast Solicitor’s trust account be forthwith released to the Respondent.
Should the funds held in Steadfast Solicitor’s trust account be greater than $113,000.00, then the amount greater than $113,000.00 shall be paid to the parties as follows:
(a)60 per cent of the amount greater than $113,000.00 shall be paid from the funds held in Steadfast Solicitor’s trust account be forthwith released to the Applicant by way of trust account cheque in favour of her solicitor’s trust account; and
(b)40 per cent of the amount greater than $113,000.00 shall be paid from the funds held in Steadfast Solicitor’s trust account be forthwith released to the Respondent.
That the Applicant is entitled to be the sole legal and beneficial owner of all funds in all bank accounts held in her name, all chattels in her possession, her personal effects and entitlement to superannuation.
That the Respondent is entitled to be the sole legal and beneficial owner of all funds in all bank accounts in his name, all chattels in his possession, his personal effects and entitlement to superannuation.
Reserved Costs
There be no Order as to costs in relation to those costs reserved on 10 December 2012 and 15 January 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zawadzki & Zawadzki has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1604 of 2011
| Ms Zawadzki |
Applicant
And
| Mr Zawadzki |
Respondent
REASONS FOR JUDGMENT
The parties married in 1994 and separated under the one roof on a final basis on 13 May 2009. They seek both parenting orders for the two youngest children of their marriage and orders pursuant to s 79 of the Family Law Act 1975(Cth) (the Act).
Parenting
The parties have three children:
a)Mr F , born in 1993 who is about 20 years of age;
b)B, born in 2006 – aged 7 ½ years; and
c)C, born in 2008 – about 5 ½ years.
In September 2010, the mother and children left the shared residence. Initially at least, the parties communicated quite well.[1] The mother rented a house close by so the children could spend time with the father: they did so, by agreement, on weekends until about mid February 2011. This arrangement reflected the mother’s then view that there was a benefit to the children in maintaining an ongoing relationship, and spending time, with the father.
[1] Affidavit of the mother filed 21 September 2012, paragraph 77.
This view has now changed. The mother adamantly believes the father sexually abused the children. Whilst previously regarding some of his behaviour toward them as immature, stupid and inappropriate, she now sees it as him grooming the children. She thinks, consequently, their best interests will be met if they continue to live with her and spend no time with the father at all or at least until they reach emotional maturity and are capable of self-protection. She says any unsupervised time with the father will expose the children to an unacceptable risk of harm.
The father adamantly denies sexually abusing either child. He believes the mother coached and manipulated the children to make false allegations of sexual abuse. He says, if the children exhibited the behaviour the mother complains of, this happened because she failed to provide them with clear boundaries and failed to enforce appropriate behaviour. He thinks, consequently, their best interests will be met if they live with him and spend alternate weekend and holiday time with the mother – but only if there is nothing psychologically ‘wrong’ with her.
The parties’ marriage was dysfunctional and characterised by distrust and concern about sexual infidelities. An analysis of the common elements of each party’s account leads to the conclusion that their relationship was always unstable. The possibility of separation was ever present and the tensions between them arose out of fundamental differences in their respective approaches to parenting and personal trust.
The mother now perceives the father to misinterpret, twist and fabricate matters to support his view of events – according to her, his life motto is “my way or the highway”.[2] She considers he has been able to convince some of those from whom he has received counselling to support “his” case and advocate for his position.
[2] Affidavit of the mother filed 21 September 2012, paragraph 75.
The father thinks the mother “used him” and undermined his parenting during their relationship. He says she was dishonest to the Court; fabricated the allegations of sexual abuse to “hurt his family”, for financial reasons and because she was disappointed he could look after the children and jealous they loved him ‘more’ than her; poisoned Mr F against him so his son ‘hates’ him; told or coached – or enlisted Mr F to tell or coach – the children to pull down their pants and touch their own and each other’s genitals; and coached them in their behaviour which persisted after their time with him was supervised.
He links the sexual abuse allegations to the mother’s refusal to continue with a previous agreement about their property. He says that, once she told him she no longer agreed to previous terms, the allegations of sexual abuse ‘surfaced’. There were no Orders dealing with the property of the parties. Both parties were always at liberty to change their minds about whatever terms may have been agreed and neither required an ‘excuse’ to do so.
That trust which remained when the parties separated under the one roof and at physical separation has evaporated. Both parties have now revisited the other’s past behaviours in the context of their respective current beliefs.
Both parties presented to the Family Report writer in mid-2012 with an intense, preoccupied and subjective view of their own accounts. Each struggled to consider issues objectively.
Each party’s request for sole parental responsibility resonates in these circumstances.
Mr F, who initially did not believe the father had sexually abused his brothers when the allegations first arose, now joins with the mother in this belief. He initially thought he had never been ‘molested’ by the father but now thinks something inappropriate, which he ‘blocked’, happened: he thinks he was sexually abused by the father when he was about five years old.
Despite an earlier view that the children’s behaviours were simply innocent play or exploration, Mr F now thinks these behaviours – for example, pushing their feet toward each other’s genitals whilst sitting on the lounge, C pulling B’s pants down and trying to touch his genitals, both children saying ‘daddy’s done it’ or ‘daddy told us to do it’ – are sexualised. He reached this view once he knew the Police and the Department of Communities (Child Safety) were involved and thought what was going on was more than just play.
Mr F’s relationship with the father, which was tenuous at best, has now broken down completely.
From mid-February 2011, any time the children have spent with the father has been supervised. This has enabled them to remain familiar with him. Whilst their interactions with him in July 2012 were described as unintentionally unruly and attention seeking,[3] I accept this may not be an indicia of anything other than the effect on them of the stress of the proceedings and having had their time with the father occur on a supervised basis for some time.[4] I accept the children enjoy the father’s company.[5]
[3] Affidavit of Mr Q filed 23 October 2012, paragraph 83.
[4] Affidavit of Mr Q filed 23 October 2012, paragraph 98.
[5] Affidavit of Mr Q filed 23 October 2012, paragraph 84; Observations during supervised time.
I also accept, whilst the father’s interaction with the children was observed in July 2012 as ‘uncomfortable’, this may well be a reflection of his anxiety about how he would present during the observation.
There could be no conclusion other than that the children’s primary attachment is to the mother with whom they have always lived. Whatever level of care the father previously provided to the children, it cannot be forgotten that, from the end of December 2008 to August 2010, he worked away on a two week on/two week off basis.
The children would struggle greatly with a change to their current primary care arrangement – it would be developmentally difficult for them to no longer live primarily with the mother. The significant impact on them of such a change is unlikely to be ameliorated by the father given his view that:
a)they would not be upset if they did not live primarily with the mother;
b)such a change would not be dramatic for the children because they had lived half of their lives with him also and only the last two years with the mother alone.
The mother says she now has no doubt whatsoever the father has abused the children in a physical, emotional and sexual manner. She has arrived at this view upon reflection and after professional assistance. With hindsight, she considers the father breached boundaries in his interaction with the children by:
a)wrestling and grappling with the children during which he engaged in or encouraged the touching of genitals and bottoms;
b)being naked and looking at himself and the boys in the mirror naked;
c)engaging in “unnecessary” physical contact with the boys – which seemingly encompassed hugging and kissing;
d)bathing with the boys and cleaning their genitals or anus unnecessarily;
e)“compulsively and habitually” fondling his own genitals when talking to his family in Europe on the telephone;
f)wearing only a towel or a Hawaiian wrap at home with no underwear;
g)allowing the children to hurt him by smacking him it the face to punish him;
h)pretending to be asleep while watching television, so the boys would jump on him, following which he would jump up and chase and wrestle them;
i)lying on his belly and allowing the children to jump on him and blow raspberries on his back and parts of his bottom that was exposed: when the boys pushed their hand into his bottom, he would laugh and say ‘that tickles me’ and joke ‘I’ll get you for this’.[6]
[6] Affidavit of the mother filed 21 September 2012, paragraph 117.
Many of the above behaviours may well seem innocent enough. However, in this case, as a consequence of the children’s behaviours, the contents of B’s interview with the Department, the Department’s conclusion about the sexual abuse allegations, her engagement in supports recommended by the Department, the children’s angry behaviour after supervised time with the father and her knowledge of the events involving the father when he was a child, the mother has formed the view that all of these behaviours were inappropriate and, in essence, part of the father’s systematic abuse of the children.
Each party’s veracity
The evidence clearly establishes the father provided differing accounts of various matters in his past to different professionals on whom he has attended and from whom he received support and assistance. The father’s cross-examination is littered with inconsistencies and denials about the information provided to treating professionals – by way of example only:
a)he deliberately minimised previous involvement with the Police by failing initially to tell both Dr G and Mr H – both of whom were asked to undertake risk assessments in relation to the sexual abuse allegations – about a past conviction for soliciting for the purpose of prostitution;
b)he denied telling Mr J – who prepared a report he relied on in his case – many of the historical matters contained in that practitioner’s notes, being matters Mr J confirmed he was told by the father;
c)he denied telling other practitioners – such as Dr K – on whom he attended many of the historical matters contained in their notes;
d)he denied telling Dr K he thought he may have sexually abused his sister – a matter recorded in the notes without the father’s later explanation they had played a childhood game – and asserted the mother provided this information in his presence;
e)he denied telling Dr G he had gone out of the home for sex on many occasions.
I do not accept the father’s explanation – in summary, that the mother provided details and he, knowing them to be untrue or an exaggeration failed to correct the information or put it into context either during the same consultation or during any future consultations – for how these personal historical matters came to be recorded in the various clinical records which formed part of the evidence.
I accept the various practitioners upon whom the father attended obtained information from him – perhaps, on occasion, supplemented or clarified by the mother – and recorded this in the notes of his appointments. I do not accept it as likely the father simply allowed the mother to provide information he knew to be untrue. In the absence of any note recording the same, I do not accept he later told, for example Dr K, that matters previously recounted had not happened.
I do not accept the father’s explanation for the presence of historical matters in Dr K’s notes – namely, that, approximately two years before they separated, the mother hatched a plan to obtain or create evidence for use in these proceedings and deliberately falsely told Dr K matters adverse to him to try and put him in the position he is in at present. I do not accept his explanation the mother first started to “frame” him before 2002.
In fact, this contention is at odds with the evidence given by Ms L – a witness in the father’s case – who reported that, as recently as December 2009, the mother told her she loved the father and he was a great husband and father.
The fact the father so deliberately said he did not tell Mr J – the author of a report he relied on – so many things recorded in that professional’s notes demonstrated his deliberate willingness to deny any matter he thought might be adverse to his case.
In addition, it is clear from all of the evidence the father deliberately failed to inform his current partner that, during the currency of their relationship, he engaged in sexual intimacy with another female. This behaviour demonstrates both his capacity to be manipulative and less than forthcoming with the truth and also that his behaviour after separation has remained as it was before separation. Ms M was emphatic in stating the father and “Ms N” had never been in a relationship. From her understanding – presumably from information provided by the father – his only involvement was to assist her with her rehabilitation. It is clear the father failed to advise Ms M fully of the extent of the intimate relationship between himself and Ms N. Like Mr J, Ms M believes – wrongly - the father has been honest with her.
The father did not give Mr O, who he called in his case to give evidence about his positive interactions with the children, any official document which contained any findings adverse to the father. This witness’s knowledge of the allegations against the father is general. He did not know the Department had substantiated the risk of inappropriate behaviour by the father. His evidence is undermined by this ignorance.
Similarly, the father called Ms P who gave evidence she believed he was a loving father who had done nothing wrong. She had not seen anything inappropriate in his interaction with the children. Whilst she knew the children had been interviewed by the Police, she did not know what they had said. She too was unaware of the Department’s investigation and its conclusion of substantiated risk. As with her husband’s evidence, again, her evidence is undermined by a lack of knowledge.
The matters outlined above and the numerous other occasions during his cross-examination when the father denied providing information to a number of different practitioners leads to the conclusion that the father was willing, during his evidence, to say almost anything to explain the contents of notes made by professionals upon whom he attended. I conclude he is a witness of extremely limited veracity.
The mother’s recounting of how she regarded the father’s behaviour historically must be assessed within the context of her being told by the Department, in February 2011, they thought she may have condoned the father’s inappropriate behaviour and failed to act protectively of the children and her receipt of counselling to inform her about behaviours which are sexually abusive of children.
I accept her account to Mr Q that, prior to separation, the father was ‘inappropriately playing with them (the younger children) in the bath’: he had a routine where he would ‘kiss them and play with them, which was fine, and then lift their legs and blow in their anuses’.
I accept the parties argued about the father doing this[7] and that, when she confronted him about this behaviour, he cried, agreed she was right, implored her to help him by not giving him the opportunity to do it again, and told her he would refuse to change nappies.[8]
[7] Affidavit of Mr Q filed 23 October 2012, paragraph 63.
[8]Affidavit of Mr Q filed 23 October 2012, paragraph 64.
I consider it more likely than not that, at the time it happened, the mother saw the father’s behaviour as being inappropriate and immature but not sexually abusive. Such conclusion is supported by her defence of the father and his behaviour when she first spoke to the Department in February 2011.
I consider it more likely than not that, with increased knowledge about behaviours in the children which might be indicative of sexual abuse, the mother has seen their behaviours in this way. She has, no doubt, also been influenced by a concern that, if she fails to report such behaviour to the Department, she might be seen as failing to act protectively.
I consider it more likely than not that the mother thought the father’s interaction with Mr F when Mr F was young had been addressed through counselling and that the father accepted this type of behaviour was inappropriate.
Some of the mother’s recounting of past events suggests she has been overwhelmed by dealing with her memory of the father’s past behaviours. I suspect that looking back and trying to remember matters which happened many years ago through a prism of additional knowledge about childhood sexual abuse may have influenced her recounting. Despite this, I generally accept her evidence and also prefer her evidence to that given by the father where the two conflict.
Why has the children’s time with the father been supervised since February 2011?
The first note
On 7 January 2011, the mother wrote a note in the communication book which accompanied the children as they moved between the households. In it she told the father not to kiss the children’s bottoms or touch their private parts, and to send them to time out if they misbehaved rather than smacking them.
She wrote this note because, on an increasingly frequent and intense basis from the end of 2010 onward, the children chased each other, tried to pull their pants down and tried to blow on each other’s bottoms. They had become more focused on their ‘private parts’ during play, were touching each other’s penis and bottom, trying to put their fingers into each other’s bottoms – saying ‘daddy does it’– and were very hyperactive, unsettled and angry after spending time with the father. Whilst the mother initially thought the children were simply exploring their bodies and functions, their behaviour reached a level she thought more than ‘normal’: it became increasingly difficult for her to distract them from this behaviour.
In addition to the above:
a)C had been chasing B and trying to blow a ‘raspberry’ on his bottom; and pushing his face in between B’s buttock cheeks and trying to put his hand between B’s bottom cheeks; and, on occasion, urinating on B – who did not protest but laughed – in the shower; and
b)B had pulled his pants down and asked her to blow on his ‘koopa’ (anus): when she refused, he said he liked it and ‘daddy did it’.
When she asked them why they were acting like this, the children continued to tell her that ‘daddy did it’ and ‘we like it’.
I do not accept the mother’s later explanation[9] that she wrote this note because, while shocked, she thought no-one would believe her, did not want to blow things out of proportion and wanted to keep the father happy because this would mean he would be a ‘happy dad’. Given her defence of the father when first spoken to by the Department on 18 February 2011, I think it more likely than not that, when she wrote it, she did not think whatever the father was doing was sexually abusive of the children. I accept, at this time, she thought the father’s behaviour was inappropriate, silly and stupid behaviour which breached the children’s personal space. I also accept, while she thought the children’s behaviour was outrageous, she did not think it was sexualised.
[9] to Dr G in mid-2012.
Despite his assertion the mother fabricated the allegations of sexual abuse for a reason somehow connected to the property agreement they had reached, the father accepted that, when he first spoke with the mother on 7 January 2011, she did not tell him this arrangement was “off.”
The children spent time with the father the next weekend. Their behaviour during the week after their return to the mother’s care was ‘a little better’ – the mother thought this may have been because the father’s then girlfriend was present for the whole weekend.
However, on 14 January 2011, when the mother was changing C’s nappy, B said “can you kiss my kupa” (a Country RR word for ‘poo’). When the mother told him “We don’t do that”, B said “But daddy does that and I like it”.
The second note
After this, the mother wrote the father another note in the communications book. In it she told him not to ‘blow inside C and B’s bum hole even if they laugh. This does not mean that this is good for them’. She also told him to tell the children that he was not going to play like that again and that if “they talk about it again that daddy do it (the behaviour) like that I will be forced to take another precautions to protect them”.
I accept the mother sent the children to day-care that day knowing the father would collect them because she thought she did not have any way to stop him doing so.
The father collected the children and the communications book. He telephoned her that night. He was enraged. The children were crying in the background. He asked the mother to come immediately and collect the children: whatever term the father used to refer to the children – “bastards” or “fuckers” [10] according to the mother or “brats” according to the father – it was derogatory of both of them and the mother. He said she was making him out to be a “molester” and a paedophile to rob him of his money. The mother collected the children from the father – there was a verbal altercation in front of the children.
[10] Affidavit of Mr Q filed 23 October 2012, paragraph 69.
As he said he would, the father reported the mother’s ‘false’ accusations to the Police on 14 January 2011: he complained she was mentally ill and the children were at risk in her care.[11] He repeated these assertions when he contacted the Department for the first time ever on 16 February 2011.
[11] Affidavit of the father filed 21 September 2012, paragraph 96.
It is difficult to believe the father truly believed, at this time, the children were at immediate risk in the mother’s care: after all, he chose to demand she collect them from him and take them into her care. It is also difficult to accept his assertions about the mother’s alleged mental ill health because he had never previously sought Departmental, or any other external, assistance. I think it more likely than not that the father deliberately went to the authorities to ensure that, if the mother reported the children’s behaviours to them, such complaints would be received against a background where they had previously received information she suffered from mental health problems. His was a pre-emptive strike designed to influence the manner in which information provided by the mother might be assessed.
Acting on the father’s information, Police and officers from the Department contacted the mother on 17 February 2011 to arrange for B to be interviewed about allegedly being kissed inappropriately by the father.[12] The mother assumed the authorities had been contacted by her solicitor or a medical practitioner or the day-care centre at which B attended.
[12] Affidavit of the mother filed 21 September 2012, paragraph 101.
B was initially interviewed by Police. He made what has been described as ‘minimal to no disclosures’ of inappropriate interaction with the father.
C was not interviewed by Departmental officers because of his age.
B’s interview
B was interviewed by two Child Safety Officers employed by the Department in February 2011. Despite the criticisms levelled against these officers, I am not persuaded the manner in which they conducted the interview influenced or caused B to make the comments he did. They did not suggest to B that he had been kissed in any particular place; whilst they introduced the topic of getting ‘kisses’ at home, they did not suggest that kisses were ‘bad’ or that bad things had happened.
During the interview, B told the officers that his father was ‘very good’ - only dad was at dad’s house.
He also said:
a)he got kisses in the butt;
b)his dad likes to, saying ‘please, please, please’ in a ‘mouse voice’;
c)his dad would kiss on the face and inside the bum, he likes to, he is crazy;
d)dad give kiss inside my mouth, I make vomit in his nose: demonstrating bubbles in his mouth and spitting – he said ‘it stinks’;
e)kiss on my shishi, it sits in his mouth – open his mouth, kiss in his mouth, vomit inside mouth;
f)dad have big big big shishi;
g)white vomit out shishi, he licks it like a turtle, kiss like a turtle;
h)lean over and lick it;
i)kisses the koopa, yummy – either that he gets kisses on the koopa or that his dad kisses on the koopa and it was yummy.
He also said, when asked whether anyone else knew about kisses: “No, because people would laugh”. When asked why people would laugh, B said touching and kissing on the bottom was a bad thing: when asked why it was a bad thing, he said it made him feel sad and horrible, he makes me vomit.
When asked about C, B said ‘Not C he kiss on face’.
B did not demonstrate a ‘raspberry’ kissing action to the interviewing officers during his interview. He did not demonstrate a ‘raspberry kisses’ noise in explaining where he was kissed or when talking about kisses.
B could not point to or name parts of his body but, when asked to describe what ‘shishi’ was/looked like, he said it had a moustache. He said ‘shishe’ also in his mouth. When asked to tell as much information about “shishi” as he could, B said he did not know what it tasted like, but ‘makes cough and sneeze.’
Neither interviewing officer knew what the term ‘shishi’ meant. They later learned from the mother it is a Country RR word for ‘penis’. Whilst neither knew what the term ‘koopa’ meant, they concluded, from the way in which B used it, that he was referring to being kissed in his ‘butt’.
Both of the interviewing officers concluded B had made serious disclosures to them. One of them had no doubt B was referring to a penis when he described a ‘shishi’ as having a moustache, going into his mouth and making him cough and sneeze. I accept that B’s interview contains details unlikely to be known by a child of his age other than by, at the very least, exposure to sexual activity.
The only person B identified to the interviewing officers as being responsible for, or involved in, the behaviour he described was the father.
After this interview B was again interviewed by Police. He confirmed the comments outlined above but was unfocused and fidgety.
Has the mother coached B to say these things?
Both Departmental investigative officers were aware of the possibility that B may have been coached to say the things he told them. Ms R described this as a “common problem”. I accept both officers were looking for ‘evidence’ of coaching when they spoke with B. I also accept that neither observed anything during the interview to suggest he had been coached in any way. I accept that, in excluding the possibility of coaching, they had regard to the following:
a)B was forthcoming in the provision of information – he did not stall in the process or behave in a manner which suggested he was providing information by rote;
b)B used language consistent with his age and vocabulary: for example, describing white vomit.
I am not persuaded B was coached by the mother to make the comments he did during his interview with the Department in February 2011. In arriving at this conclusion I adopt the analysis undertaken by the investigating officers.
I also take into account the mother’s initial reaction when spoken to by the investigating officer. I accept she did not then know about the full extent of B’s comments but, irrespective of this, she still said the father had not intentionally sexually abused the children. This comment:
a)is completely inconsistent with a comment one might expect from a person who has coached a child to make disclosures about sexual abuse adverse to the father; and
b)persuades me to conclude, at this time, the mother only knew about the father blowing on the children’s bottoms and grabbing or touching their genitals – behaviour she did not then see as sexual abuse.
The mother told the Departmental officer she did not believe the father had behaved inappropriately. She did not want to believe he had. I accept she did not want to believe there was a sexual motivation behind his behaviour. I accept she told Departmental officers the father may have acted as he did to make the children laugh. I also accept the mother sought advice from the Department to check whether she was ‘blowing this out of proportion’.
These actions are also completely inconsistent with a person who had coached B to make the comments he did. I am not persuaded the mother has the Machiavellian sophistication to coach B in his comments to the Department and then support the father to the Department.
In fact, the mother’s response was such the Department was initially concerned that she might have ‘turned a blind eye’ to the father’s behaviour. She was left in no doubt whatsoever that the Department would take action to remove the children from her care if she did not ensure their future time with the father was supervised.
Insofar as the father’s case involves any explicit or implicit assertion that Mr F either coached B to make the comments he did or taught the children to act in the manner described, it is pertinent to note that, when he spoke to the investigating officer in February 2011, he too defended the father. He said the father was blowing on the children’s stomach, back and bum but would not say the children had sexualised behaviours. He said he did not think the father was ‘a molester’.
Was there information from any source other than the mother and B?
There is a dispute about whether Ms S, the director of T Day Care where B went to day-care, told a Departmental officer on 17 February 2011 B had been overheard to say “daddy kisses on private parts and I like it”.
If this comment had been made by B at day-care, T Day Care had a mandatory obligation to report it to the Department. There was no such report. The Department sought urgent clarification from T Day Care about why the mandatory notification had not occurred.
The investigating officer then contacted Ms S. She was reluctant to provide information because she thought the Department had breached confidentiality by telling the mother about this event. Ms S told the investigating officer she was not going to provide any further information to the Department. The investigating officer said Ms S told her the father had been to T Day Care and was aggressive to her: consequently, she was reluctant to provide further information and did not want to be further involved because she was concerned about her family’s safety.
Ms S in fact provided the father with an affidavit. Whilst it contains no challenge to the accuracy of the Department’s recording of her interaction with it, Ms S orally disputed the accuracy of the Departmental notes of the conversation on 17 February 2011. She said if B had been heard to say such a thing, T Day Care would have notified the Department straight away.
Ms S said, during cross-examination, the mother told her B said the comment outlined in paragraph 73. There is no mention of any such conversation in her affidavit, nor in any records kept by T Day Care. I do not accept her explanation for this omission: namely, she did not include any reference to it because she did not think it was necessary to do so. I think it highly unlikely, if there had been a conversation with the mother in the manner alleged by Ms S, there would be no mention of it in the T Day Care records.
I do not accept Ms S refused to provide the Department with a written statement because the Department recorded the information she provided inaccurately. Whilst she explained her later interaction with the Department during her cross-examination, she did not include any reference to any of this at all in her affidavit.
In the circumstances, I found her evidence unpersuasive.
I accept that, on 17 February 2011, Ms S told a Departmental officer that, about three to four weeks earlier, B had been overheard to say “daddy kisses on private parts and I like it”. I consider it more likely than not Ms S’s later reluctance to provide a written statement confirming this arose out of a combination of her realisation that T Day Care had failed to notify the Department about it and the father’s aggressive behaviour toward her.
Ms U, a friend of the mother’s, saw the children at the shops about once per fortnight between September 2010 and January 2011. She did not see anything of a sexual nature in the children’s behaviour – whilst she saw C put his foot into B’s crutch area, she thought he was simply being cheeky and it was not a sexual act.
Mr F told Mr Q, in July 2012, that neither child had tried to grab his testicles or penis or tried to put their fingers in his anus. In about 2011, C tried to put his hand between his buttocks.
Mr F also said that, from as long ago as he could remember, the father would grab his genitals and refer to a football player called ‘Hopoate’ – who had inserted his finger into another player’s bottom. I accept he did not tell the Police or the Department about these events because, prior to their involvement, he did not think the behaviours were sexual or amounted to sexual abuse.
How to assess the B’s comments to the Department/are there alternative explanations for the children’s behaviour or comments?
The father has been interviewed by the Department a number of times. He consistently denied sexually abusing the children. His response to the allegations has ranged from providing no scenario or explanation for B’s comments during the interview to suggesting that one of the mother’s friends could have been responsible, or the allegations were fabricated or a boarder who had previously stayed with the family could have been responsible or the described events could have happened somewhere else: for example he spoke of a child at the day-care centre who had pulled B’s pants down.
The investigating officers discounted the boarder as a potential offender because they considered B had been clear in referring to the father. The mother said that the children were never left alone with any student who lived with the family.
The father accepted, during cross-examination, that B’s comments to the Departmental officers during his interview on 18 February 2011 were suggestive of exposure to oral sex.
The father accepted that:
a)when B spoke of white vomit during his interview with the Department, it seemed he was speaking of ejaculate;
b)B had complained of someone flicking him;
c)when B said it made him feel “sad and horrible”, he was talking about his emotions and how he was feeling;
d)B, at 4 ½ years of age, had provided quite a level of detail and had described oral sex: penis, ejaculate, where it had come from and what was done with it (licking);
e)B was particular when he said “white vomit” out of ‘shishi’: he should not, at his age, have known about this;
f)B used the words of a four-year-old (as opposed to those likely to be used by an adult) in describing the event; and
g)B spoke of both his emotional response and the physical response to the event.
The father said he did not know how B could so accurately describe the act of ejaculation nor how he could provide such a good description of this. The father said he had no idea where B had obtained this information and no idea where his explanations and/or knowledge came from. Whilst he said B had seen C vomit – on occasion, he vomited milk because he was lactose intolerant – there is the obvious significant difference between vomiting from the mouth and the comments B made.
The father thought B knew these things because the mother coached him about them. He said it was possible the mother coached B to say these things and to say how he feels as a consequence of them. I am not persuaded this is likely.
He could not provide any explanation for why B said he had kissed his bottom, kissed him on his mouth and put vomit in his mouth. He said he had not kissed the child’s bottom. Given the mother’s and Mr F’s evidence, I do not accept the father’s denial.
He accepted B’s comment that dad has a big ‘shishi’ and white vomit comes out of it tended to suggest ejaculation – he was concerned the child appeared to be able to explain this. He denied anything like that happened at his house, saying that the mother probably knew where it came from because the children live with her. He did not know why B said the white vomit came out of his ‘shishi’. He could provide no explanation for why B said there was white vomit of his mouth and that it made him cough and sneeze.
He accepted it seemed from his comments that B had an understanding of oral sex. He accepted it seemed from his comments as though B had provided oral sex to a man. He said B’s comments were highly concerning for him but he believed he had been coached to say this by the mother. I do not accept this.
The father could not explain B’s comments that “daddy kisses she she” or that the father had put his penis in his mouth. He denied engaging in oral sex with either child. He said it was not possible B had seen him having oral sex with another man. He did not own any man-on-man pornography.
Mr F denied having pornography at home or watching pornography on a computer at home. He accepted the children could have come into his room when he was watching M-rated or R-rated movies with friends of his who came over whilst he was babysitting. The father was confident the children had not been exposed to pornography, had not seen him have sexual intercourse with a partner or masturbate, not seen his erect penis or seen him ejaculate. They had not seen inappropriate movies or sex scenes whilst at his house.
The father said that, during supervised time, B came to him and told him Mr F told them if they saw the father they should take their pants off. Mr F denied he told his brothers to pull their pants down at the Contact Centre. I accept Mr F’s evidence.
When asked whether he had asked the father for any innocent explanation of such behaviours, Mr Q said, as far as he could recall, the father told him he had not observed any of those behaviours whilst the children were with him. The father believed they were the result of their interaction with the mother. He asserted she had always been “obsessed” about sexual matters and, after her involvement with the Pentecostal Church in about 1999, began to become preoccupied and obsessed with sexual abuse. [13]
[13] Affidavit of Mr Q filed 23 October 2012, paragraph 47.
The father said he had blown air onto the children’s feet and belly but never in or at their anuses. He had often wiped their bottoms. The father said, on occasions when he bathed with the two youngest children, in 2010 he had underwear on – on many occasions he did not. He said the children had not exhibited any behaviour which could suggest they had been sexually abused.
The father told the Department he had never kissed the children on the bottom.
He said that there was a factual basis for the children saying “daddy holds his koopa (poo)” because, two weeks before 7 January 2011, C had needed to go to the toilet at a time they could not access the house, so he collected the child’s faeces in a bag and took it and put it in a bin.
The father said he had changed C’s nappy hundreds of times - whilst he kissed him on his upper leg and on the back of the feet, he did not kiss him on the bottom. He was challenged at the commencement of his evidence he said that he kissed the child on the feet and belly and he was now saying his upper thigh.
The father did not suggest to Mr Q that Mr F sexually abused the children - he did not suggest any other person as a potential perpetrator of such abuse.
What do the experts say about the comments and behaviour?
Mr H, a psychologist, was engaged by the father to undertake a risk assessment in relation to sexual abuse.
He also gave evidence about matters relevant to an assessment of the children’s behaviours and comments. He said the following behaviour by a child may be indicia of sexual abuse or exposure to sexual behaviours:
a)using language about sexual activity beyond their developmental abilities;
b)knowing sexual matters beyond the child’s developmental stage or age;
c)mimicking sexual behaviour;
d)seeking to engage with other children in sexualised acts or behaviour;
e)the frequency of activity but not, particularly, a child touching his own penis;
f)touching other children on the genitals, touching the mother’s genitals, playing with dolls in a sexualised manner, interacting with animals;
g)asking other people to touch the child and using sexual language with others;
h)demonstrating sexual behaviour towards strangers in public places: this because it suggests a child is indiscriminate with strangers, that greeting behaviour is sexual – a child who has been sexually abused or has come to learn that style of interaction reacts in a compromised way indiscriminately; and
i)persistently demonstrating a set of sexualised behaviours.
Mr H clearly cautioned against concluding a child had been sexually abused based only on behaviours: one should not jump to a conclusion a child had been sexually abused simply because that child was engaging in acts which might be thought to be sexual in nature. However, he also said the greater the number of behaviours, the longer the time over which they are displayed and the greater the frequency with which they are demonstrated moved one closer to a conclusion that the child displaying the behaviours has been exposed to sexual behaviour or abuse.
I consider the evidence to establish that both children have demonstrated some of the matters outlined by Mr H. B in particular has displayed a knowledge of sexual matters beyond his developmental stage or age. C has sought to engage with B in sexualised acts or behaviour. Both boys have persisted in this type of behaviour over a lengthy period. B has expressed “liking” the father kissing or blowing on his bottom. Between them, the children have engaged in all of the behaviours summarised above. They have engaged in many of the behaviours on a frequent basis.
Mr H also said that:
a)whilst it is possible that one occasion of sexual abuse may lead a child to engage in inappropriate touching with other children or a stranger in public places, the “general consensus” is that frequency and seriousness of abuse has a greater impact on children; and
b)a child who has been the victim of sexual abuse can still have fondness for the abuser; and
c)it may be that a child has been abused but is unaware of this because of that child’s stage of cognitive development and trust in the perpetrator.
Dr V, psychiatrist, expressed the following opinion about the reported behaviour of the two youngest children:
…In general as a guide the sexualised behaviour of young pre-pubescent children is an indication of exposure to sexual abuse. Experienced staff at the Department of Child Safety, accept that this has occurred. These children have been exposed to some form of sexual abuse, as to the identity of the perpetrator this may well be another question.’ [14]
[14] Affidavit of Dr V filed 5 December 2012, page 9.
In referring to ‘sexualised behaviour’ by the children as an indicia of exposure to sexual abuse, Dr V relied particularly on the children’s awareness of genitals She thought it quite possible that, if the children had seen pornography, they would become aware of the sexualised nature of the genitals rather than the urinary function: this would blend into a knowledge of sexual acts. However, neither the father nor Mr F accepted the children had seen pornography in their presence or to their knowledge.
Dr V was unable to offer an opinion as to whether the father had, in fact, sexually abused the children. I accept she did not start her analysis by simply accepting as truthful and accurate all the matters contained in Department documents. I accept she relied on the contents of Departmental documents and other independent reports of the children’s behaviour as the basis for her conclusion that the children had been exposed to sexual behaviour or abuse of some sort – I accept she relied on behaviours reported by the day-care centre that the boys were touching each other and saying that their father put his fingers in their bottoms as well as on the report prepared by the Departmental investigating officer. Dr V thought it significant that reports about the children’s behaviour came from more than one source.
Dr V was asked if she could provide any explanation for a scenario in which, despite not having unsupervised time with the father since January 2011, the children had demonstrated further behaviours and/or their behaviours escalated or was seen with increased frequency. She said the question was whether there was still some sort of sexual abuse occurring or whether, as their behaviour had pre-dated the imposition of supervision, it was a reflection of exposure to inappropriate behaviour on a long term basis.
Given Mr H’s and Dr V’s evidence, I am persuaded to conclude it is likely that the children have been exposed to sexual behaviour or abuse.
The Department’s conclusions, attitude and recommendations
After interviewing B on 18 February 2011, the Department formulated a safety plan based on the assessment the children were at risk of physical and emotional harm caused by sexual abuse by the father. The Department told the mother it would act to remove the children from her care and have her charged with neglect and wilful exposure of the child to a person under investigation for sexual abuse if she allowed the children to spend time with the father.[15]
[15] Affidavit of the mother filed 21 September 2012, paragraph 102.
The mother agreed with the Department that, until the Department completed its investigation and assessment, she would not permit the father to have any direct or indirect contact with the children unless such contact was supervised.[16]
[16] Affidavit of Ms X filed 11 October 2011, paragraph 11.
On 28 April 2011 the Department recorded the outcome of its investigation as: “Substantiated emotional harm and risk of emotional harm (both parents)” and “Substantiated risk of physical and emotional harm caused by sexual abuse (the father)”. This assessment was based on the information gathered by the Department, as outlined above, and concerns the children exhibited sexualised behaviour during supervised interaction with the father. It was arrived at following internal consultation with Ms W, from the Department’s Sexual Abuse Counselling Service (“SACS”), who considered that B’s disclosures were clear and age appropriate. The Department also considered the father had engaged in inappropriate conversation and interactions with the children.[17]
[17] Affidavit of Ms X filed 11 October 2011, paragraph 20.
On 12 May 2011, the Department advised that the outcome of their preliminary investigations was “substantiated – child in need of protection”.[18] The investigating officer concluded, after consultation with and assistance from Ms W - whose role is to provide details and an opinion about research related to the sexual abuse of children specifically and information about an appropriate care plan in the particular circumstance of each case – that the father was a ‘probable perpetrator’ of sexual abuse.
[18] Affidavit of the mother filed 21 September 2012, paragraph 112.
On 6 July 2011, the Department told the mother that, if the children were with the father, action would be taken.
As at 11 July 2011 the Department assessed that the father presented an ongoing risk of sexual abuse to the children.[19] It concluded then, and in December 2011, they would be at an unacceptable risk of significant harm if they spent unsupervised time with him.[20] The existence of the July 2011 Order meant that the Department determined that more “intrusive” action about the children’s care arrangements was unnecessary.
[19] Affidavit of Ms X filed 11 October 2011, paragraph 38.
[20] Affidavit of Ms X filed 11 October 2011, paragraph 49.
As at December 2011 the Department assessed said that care arrangements which saw the children live with their mother and have supervised time with their father allowed her to meet the children’s ongoing protective needs.
On 28 March 2012 the Department told the parents its intervention had ended. The Court was told the Department did not plan to have any further involvement with the family.
The Department had criticised the mother for allowing the children to spend time with the father after they made disclosures to her: she was told that, if she let the children have unsupervised time with the father in the future, they would be at a future risk of sexual abuse.
The mother complied with the Department’s requirement that she attend:
a)specialist counselling – to assist with her emotional stability and mental health functioning; and
b)a protective behaviours course – to educate her about behaviours which constituted sexual abuse and inform her of indicators of sexual abuse.
The mother has also complied with the Department’s recommendation that the children have personal and protective behaviours counselling[21] – she arranged for B to go to Z Centre on 22 June 2011. B participated in the “Y Program”. C, who was too young for this program, had play and sand therapy for children who had experienced trauma.
[21] Affidavit of the mother filed 21 September 2012, paragraph 113.
Given the Department’s advice to her about the action which would be taken if she allowed the children to see the father unsupervised, I accept the mother has diligently reported everything that has happened to the Department. She has remained in contact with the Department – she has reported details of every sexualised behaviour and statement made by the children.[22]
[22] Affidavit of the mother filed 21 September 2012, paragraph 114.
How has supervised time gone?
The investigating officer previously supervised a number of visits between the children and the father.
On 11 May 2011, C stood in front of the father and pulled his pants down. B copied this. The father repeatedly asked the children why they had done this. He told them to start praying for the truth to set them free.[23] On another occasion, B went up to the father and pulled his pants down: when asked by the father who had taught him this, he said ‘Mr F’. Mr F denied teaching either child to behave in this way. I accept Mr F’s denial.
[23] Affidavit of Ms X filed 11 October 2011, paragraphs 21-25.
In about May 2011, out of the blue, C tried to put his fingers into his father’s mouth and spoke of ‘catching the snake’. Despite being aware the father and children had previously gone on night nature walks, the investigating officer thought this comment significant – she accepted at trial she may have placed more significance on this than was warranted. Without more, I am not persuaded that this event has particular significance.
The mother initially resisted the children spending supervised time with the father because their behaviour worsened after they saw him. On 12 July 2011 Murphy J ordered, by consent, that the children spend supervised time with the Father at a Contact Centre on one occasion per fortnight and during any time arranged by the Department. Delay in locating a Centre willing to undertake supervision meant that the Department additionally supervised time between the children and the father on: 28 July 2011, 18 August 2011, 27 September 2011, 1 February 2012 and 15 February 2012. Nothing happened during these visits to raise concern.
Previous attempts to arrange for the children’s time with the father to be supervised outside a Contact Centre have not been successful.
I accept the mother’s evidence that in early 2012 she had difficulty raising issues with staff at the Contact Centre because they made her feel like they saw her as a ‘crazy person’. Given the father’s capacity to enlist Mr J – a trained professional – in his cause, I consider it quite possible he told staff at the Centre enough to suggest that the mother was ‘the crazy one’.
How have the children behaved since supervised visits began?
The mother said that, on 8 June 2011, C said he wanted to make shishi (wee) in her mouth. When she told him he needed to go to the toilet he argued with her saying: “we do that” and “daddy did it”. B joined the conversation saying: “yes daddy do it to me too”. The mother reported this to the Department.[24]
[24] Affidavit of the mother filed 21 September 2012, paragraph 122.
The mother reported the children’s behaviour remained disturbed: for example, on 8 June 2011 she told the investigating officer that the children were acting ‘weird’ – C often pulled on B’s penis and put his hand between his bum.
I have no doubt that, having had counselling to learn how to recognise indicia of sexual abuse and with the Department’s threats ringing in her ears, the mother has been assiduous in reporting any behaviours which might in any way be regard as sexual in nature.
The mother and children lived with Ms AA from January 2012 until May/June 2012. The mother told Ms AA about the allegations of sexual abuse within a fortnight of moving to stay with her. Ms AA initially saw C continue to pull B’s pants down or try to pull them down. She saw C try to push his hand into B’s anal area and try to jab B in the bottom between the buttock cheeks. She saw C initiate this behaviour on many occasions. Ms AA said that, most times when C played with her dog, he would pat it and then try to insert his finger into its anus. Ms AA said, during the period from January 2012 until May/June 2012 when the mother and children lived with her the children were more aggressive after seeing the father.
In early 2012, during a visit to B Resort, C ran up to unknown adult males and pushed his hand into their “anal area”.[25]
[25] Affidavit of the mother filed 21 September 2012, paragraph 120.
On 28 March 2012, C’s preschool told the mother that C had asked another child if he liked to stick his fingers up his bum.[26]
[26] Exhibit 7.
The CC Care recorded that on 2 May 2012, B called another child “hey pretty boy” while wiggling his body about.
When the mother was interviewed by Mr Q on 17 July 2012 she told him that after supervised time with the father:
a)C pulled his pants down and tried to shove his fingers and toys into B’s bottom saying “daddy does it” and “daddy did it” and also “daddy put his finger in my bottom”;
b)the children were unsettled for two-three days after the time;
c)B had problems sleeping;
d)C put his own finger in his own anus, saying “daddy did this and this” – at the time he was pulling his penis and testicles. The mother said B also said at this time “daddy did it to me too”;[27] and
e)C stood behind B and used pelvic movement against his brother’s bottom.[28]
[27] Affidavit of the mother filed 21 September 2012, paragraph 123.
[28] Affidavit of the mother filed 21 September 2012, paragraph 125.
In about August 2012, the mother took a continental cucumber from the fridge to cut it for C. He “backed into the corner of the kitchen with fear in his face, saying ‘don’t hurt me, don’t hurt me with this’. When she asked him what he was talking about, he said “it looks like big shi shi.” When she asked him “where did you see it”, he said ‘it’s like daddy’s’.[29]
[29] Affidavit of the mother filed 21 September 2012, paragraph 128.
The CC Care recorded that, on 14 August 2012, B pulled his pants down and showed his penis to Prep children.
Have there been ‘disclosures’ since supervised time began?
Ms X said that, on 1 August 2011, the mother told her:
a)the children said the father would put their “shi shis” in his mouth; and
b)the children’s behaviour changed after time with the father – they did not follow her directions.[30]
[30] Affidavit of Ms X filed 1 December 2011, paragraph 6.
C was interviewed by the DD Child Protection Unit on 8 January 2012. He made no disclosures of significant relevance and would not go into further detail about the games he played with the father unless directly questioned.
On 9 January 2012, the mother told the Department the children had continued to make disclosures of sexual abuse allegedly perpetrated by the father.
That the behaviours described above have persisted and occurred in a number of different settings strengthens the conclusion that it is likely the children have been exposed to sexual behaviour or abuse.
Does unsupervised time with the father pose an unacceptable risk to the children?
The resolution of an allegation of sexual abuse is “subservient and ancillary” to this Court’s determination of that parenting order which is in the children’s best interests.[31] However, a consideration of the allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting children from harm.[32]
[31] M v M (1988) 166 CLR 69.
[32] Section 60CC(2)(b)
The Court is not compelled to make a determination about whether the father sexually abused the children. Rather, the ultimate and paramount requirement is to make orders which are in the children’s best interests. Orders which place the children at an unacceptable risk of harm could not be seen as being in their best interests.
What is the expert evidence about risk?
The father saw Mr J, psychologist, on more than 40 occasions since about 22 October 2009. Mr J considers the father’s involvement in Theophostic Counselling with Pastor FF created false memory about some of the matters in his past involving his family.
Mr J has no experience in assessing the risk a person might sexually abuse a child. He has never treated any person with aberrant sexual behaviours. He did not undertake any formalised testing of the father. His opinion that he did not believe the father ‘would sexually abuse the children’ must be seen in this context.
In addition, Mr J’s assessment of the father and any risks he may pose to the children must be considered in the context of his actions in writing to the Magistrates Court in support of the father on 25 October 2010 (the October 2010 letter). He did so after the father “might have” asked him to provide some sort of support.
The October 2010 letter indicated the father had difficulties in his relationship with the mother, that the father was not a risk to the mother but the mother was manipulative and abusive of the father. Mr J concluded his letter with a statement that the mother could be diagnosed with Borderline Personality Disorder.
Mr J did not initially consider he had breached his ethical obligations in relying on matters the mother told him during her sessions as the purported basis for his assertion to the Magistrates Court that she could be diagnosed with Borderline Personality Disorder. He ultimately accepted he had.
Mr J accepted that, by late October 2010, he had started to act as the father’s advocate. I accept the suggestion made by Counsel for the mother that, such was the father’s persuasiveness, Mr J was enlisted to support him in his account of issues at the expense of his own professional objectivity and the ethical obligation to keep confidential information provided to him by the mother during her therapy with him.
It is clear that Mr J proceeded on the basis the father told him the truth – he believed him to be trustworthy: an opinion I do not share.
Mr J agreed that, by October 2010, it ‘might’ be right to conclude that he had lost all objectivity in relation to the father.
I consider that, in fact, he so lost his objectivity he was prepared to write the October 2010 letter. It contains a character assassination of the mother. It was written in circumstances where Mr J had no knowledge of the content or basis of the domestic violence application which was then before the Court. I accept he agreed to write this letter because of his “perceived injustice” about what was happening.
Further examples of Mr J’s loss of objectivity and adoption of the position of advocate for the father can be found in the following:
a)his hope for the domestic violence proceedings for which he wrote the October 2010 letter was that the father would not have a Protection Order made against him – to this end he was prepared to give good character evidence for the father and bad character evidence about the mother;
b)he was prepared to diagnose the mother as suffering from Borderline Personality Disorder – and convey this ‘opinion’ to the Magistrates Court in the October 2010 letter and in later correspondence to the Department– after having seen her for only two sessions: he also asserted that, despite there being no reference whatsoever to this in his notes, he relied on his observations of her attitude, the tone of her voice, her eye movements and her emotions being ‘all over the place’ (within a context of knowing only what the father told him about what was happening in the parties’ lives at these times) on occasions she accompanied the father for his therapy with him as a basis for his ‘diagnosis’;
c)his evidence that he did not re-engage with the mother because he did not believe, based on his two visits with her, that she would give him “true and accurate responses” – in these circumstances of limited personal opportunity to assess the mother’s veracity, such assessment can only logically have followed from an acceptance of the father’s version of events;
d)he accepted he would be very guarded about the mother’s recounting to him of events – again, such a conclusion can only logically follow from an acceptance of the truthfulness and accuracy of the information provided by the father;
e)despite asserting, in the October 2010 letter, that the father presented no danger to the mother – because he viewed the treatment he administered had removed this risk – he was unaware at the time he wrote the letter of the basis on which the domestic violence order was sought;
f)he contacted the Department in May 2011 to ‘point out’ he diagnosed the mother with ‘anti-social personality disorder’, believes she is a very good liar, is able to manipulate people into thinking things are true and is using the boys to gain material things such as the house;
g)he wrote to the father’s general practitioner on 30 June 2011 to outline his opinion the mother had borderline personality disorder – he made no mention he had only seen the mother on two occasions nor about the basis on which he had formed such a view;
h)he said his hope of the current proceedings is that the father is given custody of the children;
i)he has been prepared to express an ‘opinion’ – reached without opportunity to see and evaluate the children or engage with the mother more than as outlined above – that she has coached the children to make disclosures of sexual abuse: this conclusion was seemingly “based on typical behaviours of someone with borderline personality disorder”;
j)he was prepared to express the view in correspondence forwarded to the Department, that:
i)the mother has ‘paranoid ideation including her recent irrational accusations that [the father] has been sexually abusing the two younger boys’;
ii)“I think it is appalling that [the mother] would stoop to the depths of accusing [the father] of sexually abusing his sons who he loves, yet it is not surprising and in fact indicative of her Borderline personality Disorder and her Antisocial Personality Disorder traits”;
k)he has been prepared to express the view the children ‘are much safer’ in the father’s care and the mother was not able to parent the children based only on what had been discussed with the father and his very limited observations of the mother; and
l)he was prepared to assert categorically he did not believe the father was capable of sexually abusing the children.
These matters compel the conclusion that I can place no weight whatsoever on Mr J’s opinion about the father or the likelihood of him sexually offending against the children. I do not accept any professed opinion about the mother’s parenting capacity. I consider that, by the conclusion of his cross-examination, Mr J was attempting to justify his extraordinary diagnosis of the mother – one he had been prepared to reach on the basis of only two consultations and information provided by the father.
I do not accept he had a proper basis upon which to reach the conclusion about the mother he expressed to the Magistrates Court. I am not persuaded to place any weight whatsoever upon any of his evidence in so far as it purports to be an assessment of either party’s functioning.
Mr H, psychologist, was engaged to undertake a risk assessment of the father. Unlike Mr J, he has experience in assessing and treating people who have been convicted of sexual offences. The father attended on him on 31 January, 14 February and 28 February 2012.
Mr H said, even if the children had been sexually abused or there had been an event of sexual abuse perpetrated by the father, there is not 100 per cent risk that the father may reoffend. If there had been ‘only one’ offence, research suggested that about 96 per cent of people did not reoffend in five years.
Mr H said that denial and minimisation of behaviour were not connected with recidivism. Rather, according to recent research, the two biggest predictors of recidivism are alcohol and substance abuse and poor peer relationships.
Mr H also said that being a victim of child abuse has not been shown empirically to be a predictor of the likelihood of engaging in sexual abuse of children: despite public opinion, empirical evidence (obtained in 2010) suggests that being a victim of child abuse is not a predictor of recidivism of perpetrated sexual abuse. In contrast, Dr G clearly considered the father’s own experiences as a child very relevant: he said he had specifically asked the father whether he had been sexually abused as a child because he considered it highly significant and relevant to his assessment of any risk the father might pose to the children.
Given the divergence of opinion about the impact of the father’s history on the likelihood of him engaging in or exposing the children to abusive behaviours, it is necessary to assess the evidence about relevant matters in the father’s past.
The incident involving Mr F
When Mr F spoke to Departmental officers in February 2011 he said he did not recall any sexual abuse by the father - he did not remember the father ever touching him inappropriately: he doubted it was “that much of a big deal”.
However, by the time he swore his affidavit in about September 2012, Mr F remembered the father hurt him while washing him in the bath: he told his mother “he put finger deep in my anus and it hurt me”. After this, the mother insisted Mr F have his bath or shower on his own.[33] He remembered the father told him, when he touched his anus, that he needed to clean himself – he was not sure whether the father was washing him with soap or a flannel. He later said, as far as he could remember, this type of event only happened once.
[33] Affidavit of Mr F filed 20 September 2012, paragraphs 26 and 28.
When asked to explain why he had not mentioned this event when first speaking with the Departmental officer, he said he always remembered it but had not always understood or “noticed” it was inappropriate. Given my findings about the manner in which the mother initially regarded the children’s behaviour in early 2011, I accept his explanation.
The mother said during cross-examination that, when Mr F was about five or six years old, he and the father had a bath together. She was taking their clothes out and towels back into them. When she was outside, Mr F screamed and cried – when she went back into the bathroom, he was standing up, with soap all over him: he said “daddy put his finger in my bottom and it hurt me”. She told the father he did not have to put his finger in the inside of Mr F’s bottom, just the outside: she said, as a stupid joke, “Do you want me to bring a bottlebrush”. At the time, she thought that, as the father washed the child’s bottom, his finger caught in his anus. She thought this stupid, inappropriate behaviour by the father.
However, in about 2004, when the parties were reconciling their marriage, the mother asked the father what had happened with Mr F: he broke down and cried and said he was preparing Mr F for his future sexual exploration/experience. The father told he was confused and did not know boundaries. He said he now understood that was wrong and he would never hurt Mr F. She trusted and believed him. She accepted he could be confused and behave inappropriately. She did not think anything would happen again.
When speaking with Mr Q about this incident in July 2012[34] the mother said the father also told her he had done this because he believed this was normal for males to do.[35]
[34] Affidavit of Mr Q filed 23 October 2012, paragraph 37.
[35] Affidavit of Mr Q filed 23 October 2012, paragraph 38.
The mother told Mr Q she accepted the father’s explanation then because, at that time, she did not see him as a sexual predator – because of her own lack of experience and knowledge, she believed his behaviour was a confused accident. The parties then educated themselves by doing courses about sexuality.[36]
[36] Affidavit of Mr Q filed 23 October 2012, paragraphs 38 & 39.
The father denied any of these events occurred. He said that, for the mother, every interaction was one sexually abusive. He told Mr Q she acted like this because she had been sexually abused as a child and this affected her judgment about these issues.[37]
[37] Affidavit of Mr Q filed 23 October 2012, paragraph 40.
The father told Mr Q the only event he could think of which might approximate what the mother alleged was when Mr F had a sore tummy - he massaged him until he passed faeces. After this, the child started crying and the mother put him in the bath. The father said there was no “retelling” – by which I understand him to mean ‘discussion’ – between the parties about this event afterwards.[38]
[38] Affidavit of Mr Q filed 23 October 2012, paragraph 41.
The father told Dr G that, whilst he had been accused of sticking his finger in Mr F’s “butt hole”, it was the mother who stuck a thermometer in the boy’s anus – he had rubbed his belly when he was constipated on the toilet.
The asserted add-backs : Items 5, 6 and 7 in the Table
Both parties have already received distributions of property: the wife in an amount of $113,000.00 and the husband in an amount of $117,000.00.
Whilst both parties seek that these amounts be notionally added back into the pool of property available for consideration, authority clearly establishes that the notional adding back of property no longer in existence is an exception rather than the rule.[50]
[50]M & M [1998] FamCA 42; Cerini & Cerini [1998] FamCA 143, [46]; Omacini & Omacini (2005) 33 Fam LR 134, [39]; Kouper & Kouper (No 3) [2009] FamCA 1080, [107].
Further, whilst delivered before Stanford, in Lovine & Connor and Anor (2012) FLC 93-515[51] the Full Court said, at [101]–[103]:
101. The judicial act here was the determination of just and equitable property Orders in the exercise of the discretionary jurisdiction conferred by s 79. Within the exercise of that overall discretion, when an issue of financial conduct conveniently described generically as a notional add-back arises, it is not determined by the application of fixed legal rules. Guidelines have been formulated over time in a number of well-known authorities concerning issues surrounding notional add-backs (see, for example, Omacini & Omacini (2005) FLC 93-218; DJM & JLM (1998) FLC 92-816; Townsend & Townsend (1995) FLC 92-569; Kowaliw & Kowaliw (1981) FLC 91-092; Browne & Green (1999) FLC 92-873; Chorn & Hopkins (2004) FLC 93-204; Cerini & Cerini [1998] FamCA 143; Polonius & York (supra)).
102. Undoubtedly such guidelines promote uniformity of approach and diminish the risks of inconsistency and capricious and arbitrary adjudication, but as the High Court made clear in Norbis & Norbis (1986) FLC 91-712 (“Norbis”), such guidelines do not constitute binding rules of law. Mason and Deane JJ said in Norbis at 75,166:
The nature of the issues which arise under sec 79 is such that there is either little or no scope for giving guidance in the form of binding rules of law.
103. Understood in this context, disposition of an issue concerning a potential notional add-back does not involve the application of a fixed rule to the facts on which its operation depends. Rather, the exercise is one of discretion within a discretion. That is, a discretion as to the manner in which the issue of notional add-back is to be treated within the overarching discretion of determining just and equitable orders under s 79.
[51] delivered 24 October 2012 – pre Stanford.
In Watson & Ling [2013] FamCA 57,[52] delivered after Stanford, Murphy J, sitting at first instance, said as follows:
[29] Where, but for the disposal of money or other property by one party, legal or equitable interests in it would have been part of those existing at trial, it may be possible to assert, in the particular circumstances of a case, that the money or property is nevertheless to be considered as part of the existing legal or equitable interests of the disposing party (sham transactions and circumstances where it can be established that the property is held, for example, on trust by another for the disposing party are examples). The investigation of issues of that type might be seen to be part of the establishment of the existing legal and equitable interests at trial – a task which the majority of the High Court in Stanford (at [37]) said should be the first step in considering, pursuant to s 79(2) (cf s 90SM(3)), whether it is just and equitable to make an order.
[30] In many other cases, for example those which come within the convenient rubrics of “waste” (see Kowaliw & Kowaliw (1981) FLC 91-092) or “premature distribution” (see, for example, Townsend), legal and equitable title to the money or property will have passed. It could not be said that the money or property is part of the “existing legal or equitable interests” of a party or the parties. The notion that such money or property should be treated as a “notional asset” or “notional property” appears to run contrary to the thrust of the decision in Stanford: at issue is the consideration of two separate questions, the first of which is whether existing legal or equitable interests should be altered.
[31] Yet, of course, unilateral actions of the type described might very well be a consideration – indeed, in an appropriate case, an important consideration – in deciding if any order should be made altering the existing interests of a party or parties.
[32] Where the Court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have been significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.
[33] How might that be recognised? First, consistent with existing authority, it can be recognised pursuant to s 75(2)(o) (cf s 90SM(3)( r) (see, for example, Omacini & Omacini (2005) FLC 93-218, Browne & Green (1999) FLC 92-873 and Cerini). Secondly, it might be contended that it might be recognised within the assessment of contributions. This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC 90-908). Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.
[34] The assessment of the circumstances under discussion is, ultimately, a matter of discretion (see, for example, Cerini at [46] and Townsend at 81,654). Equally, however, authority dictates that it will be “the exception rather than the rule” (Cerini at [46]) that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. It may be that aspects of the erstwhile treatment of legal fees pre-Stanford (see, for example, Chorn & Hopkins (2004) FLC 93-204) will require further consideration in an appropriate case.
[35] Importantly, of course, as has been emphasised in many authorities including those cited above, not every dissipation by a party can be seen to involve an affront to justice and equity; again the circumstances of the individual relationship must be assessed.
[52] delivered 12 February 2013.
In Bevan & Bevan [2103] FamCAFC 116 the plurality[53] said, at [79]:
We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under S 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of the forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.
[53] Bryant CJ & Thackray J; delivered 8 August 2013.
In addition, Finn J said, at [160]:
These reminders that the jurisdiction under s 79 is a jurisdiction to alter individual interests in title to property and that there is no community of property in this country, might also call into some question the current practices in relation to the treatment of property which is no longer in existence but which one party has had the use of (the so-called “add backs”), and perhaps also of the unsecured liabilities of one or both parties. It may well be that these matters should more strictly be considered in making findings under s 79(4)(e)(i.e. s 75(2)), or in an extreme case, when considering the question under s 79(2) as to whether it is just and equitable to make any order under s 79. But these questions do not arise in the present case, and are thus for another day.
Unsurprisingly given the view he expressed in Watson (supra), in Baglio & Baglio[54] Murphy J, in discussing the parties’ agreement that money spent on legal fees should be “added back” to the pool, said at [186]:
In my view, the role of “add backs” or, more specifically, the concept of “notional property” in property proceedings may need to be revisited in light of Stanford. The emphasis on the predominance of existing legal and equitable interests raises concerns over the place of “notional” assets or a “notional pool” as a means of dealing with a finding of inequity or injustice arising from the use by one party of property or funds which, but for that use, would have been part of the legal and equitable interests of the parties at trial. In that respect, I repeat here what I said in Watson & Ling [2013] FamCA 57 at [27] – [35].
[54] [2013] FamCA 105, delivered 27 February 2013.
In Harper & Harper [2013] FamCA 528 (delivered 19 July 2013) Macmillan J stated at [63] and [64]:
The clear statement of principle in Stanford is that in order for the Court to determine whether it is just and equitable to make orders pursuant to s 79, it must first identify the existing legal and equitable interests of the parties in the property. As Murphy J said in Watson & Ling at paragraph 30, the concept of “‘notional property’ appears to run contrary to the thrust of the decision in Stanford”. Whilst justice and equity might require recognition of either the unfairness of the conduct of one of the parties, which arguably would apply to both the Kowaliw type situations or where there has been a premature distribution of property, as noted by Murphy J, that conduct could be taken into account pursuant to s 75(2)(o).
It is not yet clear how add backs will be approached as a result of Stanford. …It is quite possible that as a result of the decision in Stanford there will be little place for add backs in the assessment the Court must make of the parties’ legal and equitable interests. At the very least the decision in Stanford is likely to emphasise once again the exceptional nature of add backs.
I consider that the “overarching discretion” of determining just and equitable orders between the parties can best be met by declining to add-back notionally the $113,000.00 already received by the mother and the $117,000.00 received by the father.
Further, in circumstances where the cars previously bought by the parties using money each obtained from the sale of a matrimonial asset (the car they had at separation) have now been sold, the father has no car and the mother’s car has no value, I am not persuaded that “overarching discretion” of determining just and equitable orders requires the notional adding back of the value of the father’s (now sold) motor vehicle - I decline to do so.
Consistent with what I consider to be the underlying theme of the decisions referred to above, with which I agree, I intend to consider these matters when considering other relevant s 75(2) matters.
How to characterise the $60,000.00 the mother received: Item 8 in the Table
On 10 December 2012, the Court ordered, by consent, that the children be placed on the watch list. In addition, Kent J ordered the mother receive $60,000.00. He reserved the characterisation of this amount to the trial Judge. The mother submits this sum should be characterised as spouse maintenance while the father submits it should be characterised as a partial property settlement and ‘notionally’ added back into the pool of property amenable to orders pursuant to s 79 of the Act.
The mother sought the release of this money on the basis that it was needed to enable her to pay for her legal fees. It was submitted the Court should be persuaded to characterise the money as spouse maintenance on the basis that the mother had need for financial support and that, whilst the father was not working, he had the capacity to do so and through this meet her need.
I am not persuaded on the evidence to characterise the $60,000.00 received by the mother in December 2012 as the payment to her by the father of lump sum spousal maintenance.
I consider the appropriate way to take this payment into account is to deal with it in the same manner as I have determined to do with the other sums received by each party: that is, to take its receipt by the mother into account when assessing the relevant s 75(2) matters.
Given the parties agree that the furniture each currently has is valued in the same amount, I consider it appropriate to disregard these items for the purpose of ascertaining their respective entitlements to the remaining property.
The consequence of this determination and the findings about Items 5, 6, 7 and 8 in the Table at paragraph 271 is that the value of the property of the parties (inclusive of superannuation interests) as at the date of trial is $142,167.00 which is comprised of:
i)$113,000.00 held in Trust;
j)$28,511.00 – the husband’s superannuation entitlement; and
k)$656.00 – the wife’s superannuation entitlement.
The s 79(4) considerations
In considering the relevant matters mandated by s 79 of the Act, it must be remembered that:
a)“community of ownership arising from marriage has no place in the common law”[55];
b)the exercise of the discretion conferred on the Court must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;[56]
c)that there is no presumption of equality of contribution between parties to a marriage, irrespective of the length of their union;[57]
d)the assessment of the contributions made by parties is holistic – not a matter of mathematical computation[58] – and is part of a further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of the particular relationship: the essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship;[59]
e)a trial judge is bound to analyse and weigh all of the contributions, including indirect contributions (which are to be given significant weight[60] and which should not be undervalued[61]), of all of the types made by the parties; and
f)there is no requirement that contributions be ‘tied’ to particular assets and the Court’s role is to evaluate the significance of various contributions.[62]
[55]Stanford and Stanford (2012) 247 CLR 108, [39] citing Hepworth v Hepworth (1963) 110 CLR 309, 317 per Windeyer J.
[56] Bevan & Bevan [2013] FamCAFC 116, [73].
[57] Mallet v Mallet (1984) 156 CLR 605.
[58]G & G (1984) FLC 91-582, at 79,697; Norbis& Norbis (1986) 161 CLR 513, 523, per Mason and Deane JJ.
[59]Dickons & Dickons [2012] FamCAFC 154; Lovine & Connor and Anor (2012) FLC 93-515; Bolger & Headon [2014] FamCAFC 27, [28].
[60] Mallet v Mallet (1984) 156 CLR 605.
[61] For example : Ferraro & Ferraro (1993) FLC 92-335 79,568-9.
[62] Farmer & Bramley (2000) FLC 93-060.
Consideration of the contributions of the parties
As outlined above, the parties married in 1994 and separated on a final basis on 13 May 2009. They remained separated under the one roof until September 2010 when the mother and children left the former matrimonial home.
I accept that, when the parties married in Europe, they owned relatively limited property. I accept the mother had $10,000.00 which had been given to her by a relative.
I accept that, whilst the father’s name was on the lease of a property in Europe in which his aunt then lived, at that time in that part of Europe there was no such thing as ownership of real property. I do not accept that the father inherited the property from his aunt. Rather he had the right (unquantified as to valued) to acquire it from the State because she had previously placed his name onto the lease.
After the marriage the mother stayed at home and the father worked as a waiter for remuneration. They did not acquire any significant assets in Europe before they moved to live in Australia. When their first child was born, the mother cared primarily for him whilst the father continued to work for remuneration, including abroad for six months.
I accept the parties exercised the option to buy the European property in about 1999 using joint funds of about $4,000.00. The parties later sold this property in about 2006. They received about $35,000.00. At least some of this was used, not long before their second son was born in September 2006, to repay the home loan secured by mortgage over the former matrimonial home.
The father said, the mother worked for about four years out of the 14 years the parties were in Australia. He said she did lots of jobs for short periods of time during the marriage. He did not know what she earned per week because the parties had separate accounts. He accepted that, for a period of time, the mother worked two jobs at one time: namely day care and cleaning.
When asked whether he accepted that during their relationship he undertook the role of breadwinner whilst the mother undertook the role of looking after and caring for the children, the father said she was a stay at home mum and did “little things” by herself. He did not accept the children were her priority – a matter which I reject completely.
The father inherited $25,000.00 from his late mother’s estate in about 2008. He deposited this amount toward the home loan. He told the mother it was his money and would always be his. He said she agreed to this and told him she would not claim this money. In about 2009, the parties withdrew about $9,000.00 - $10,000.00 from the home loan facility and combined this with $6,000.00 to purchase a family car.
I conclude that each party worked hard, albeit in different spheres and undertaking different tasks, prior to their separation under the one roof. I accept that the mother was responsible for the majority of the parenting responsibilities – including when he was away working in remote locations for two weeks at a time - while the father was primarily responsible for the financial support of the family.
The father said that, whilst he did not pay child support to the mother for the period from when they were separated under the one roof until when she moved out with the children, he paid money into the mortgage and paid bills, gave her cash put petrol in the car and cooked meals so that the children had food. The mother accepted that the father paid money into the mortgage but asserted that her money (being a payment from Centrelink and Family Allowance) was used for food and bills. I consider both parties contributed financially at the time.
I accept that, after the physical separation in 2010, the mother paid the father’s electricity, phone, rates and insurance accounts until these were transferred into his name. She did not have a figure for how much she paid. I accept she borrowed money to pay the bills because she did not want a bad credit history - as the father did not pay these, she had to because she was named on them.
I accept that, from January 2011 until the time of trial, the father paid about $9,000.00 by way of child support.
I accept the mother used the $1,000.00 she withdrew from a joint account to pay joint debts.
Conclusions as to contributions: s 79(4)(a)-(c)
In assessing the contributions made by the parties, the Court embarks upon a process involving the exercise of a broad discretion in respect of which reasonable minds may differ. Whilst this process is neither an accounting or mathematical exercise,[63] it does involve a movement from “a qualitative evaluation of contributions to a quantitative reflection of such evaluation” – that is, a “leap” from words to figures.[64] As noted above, it is a holistic exercise.
[63] See: Norbis v Norbis (1986) 161 CLR 513, 522; Brandt and Brandt (1997) FLC 92-758.
[64]Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234] per Coleman J.
I conclude that, in the period from the commencement of cohabitation following their marriage until trial the parties contributed equally, albeit differently. Whilst the father had the option to purchase the property in Europe, the parties used joint funds to exercise that option which later resulted in financial benefit. Whilst the father contributed an inheritance of about $25,000.00 in 2008, the mother has borne the overwhelming responsibility of the care of the children, not only during the cohabitation but since January 2011 when the children’s time with the father has been very limited. She has met their financial needs, albeit with the assistance of limited child support paid by the father.
None of the orders proposed by either party will have any effect on the earning capacity of either party
Relevant s 75(2) matters
The mother was born in 1970 and is 44 years of age. The father was born in 1971 and is 42 years of age.
I accept the mother will be able to continue to work for remuneration. She has recently worked in a café. She has previously worked in Myers as a shop assistant, managed shops and cafes, and worked as a child care provider. Her earnings are likely to be modest.
The father has previously been regarded as very reliable, professional and respectful within his work environment. He is a great worker: “an outstanding employee, dedicated, professional and affable” according Mr PP, the owner of the QQ Pty Ltd business for which he has previously worked.
I consider the father’s income earning capacity is certainly no less than the mother’s. He has previously worked in remote locations were his income significantly exceeded anything the mother has previously earned. His past experience of such work means it is at least possible he may return to it in the future, even though he said he did not think he would do so because it is a very isolating job.
I accept the father’s likely income is in the vicinity of no less than about $35,000.00 nett per year.
The mother will have the overwhelming responsibility for the care of the children. It is likely that this will impact, to some extent at least, on her ability to work for remuneration. She will care for the children in circumstances where the quantum of the father’s financial contribution to their support is likely to be relatively limited.
Had I been persuaded to add back notionally the monies each party has already received, the value of the pool of property available for consideration would have been $432,167.00. The mother has already received $177,000.00 – $64,000.00 more than the $113,000.00 received by the husband. The sum of $64,000.00 is 14.8 per cent of the add back inclusive property pool.
Taking this into account and considering the mother’s primary care of the children and likely impact on her in both a financial and non-financial sense, I consider that an adjustment of ten per cent of the existing property properly reflects a consideration and balancing of the relevant s 75 (2) factors.
The result for the parties of this conclusion is that the mother shall receive 60 per cent – or $85,300.20 – of the available property (in circumstances where she has already received $177,000.00) and the father will receive 40 per cent – or $56,866.80 – of the available property (in circumstances where he has already received $113,000.00).
I am persuaded that, where the mother has the future significant care of the children and the father pays limited child support, it is just and equitable and appropriate that she receive the entirety of her entitlement from the monies currently held in trust rather than by way of some combination of superannuation obtained via a splitting order operative in respect of the father’s entitlement to superannuation. She has, I consider, a greater need to be able to access funds than the father who will receive $28,355.80 and retain his superannuation entitlement of $28,511.00.
Should the funds in trust be greater than $113,000.00 it is appropriate that the wife receive 60 per cent of the amount greater than this figure and the husband 40 per cent of the amount greater than this figure.
Reserved Costs
On two previous occasions the Court has made an order reserving the parties’ costs:
a)on 10 December 2012, Kent J made orders by consent in relation to the children being placed on the watchlist and the parties be restrained from posting matters online. He also dismissed the balance of the father’s Application in a Case dated 8 October 2012 and ordered that the mother receive $60,000.00 to be paid into her solicitor’s trust account;
b)on 15 January 2013, Bell J dismissed the father’s application for litigation funding.
The appearance before Kent J in December 2012 resulted in some Orders being made by consent. Whilst the father was entirely unsuccessful before Bell J., his application for the release of funding the legal expenses followed upon the wife’s successful application for the same before Kent J. The property of the parties and their financial circumstances are modest.
I am not persuaded that the circumstances justify a departure from the legislative starting point that each party bear their own costs in proceedings under the Act.
I certify that the preceding three hundred and nineteen (319) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 9 April 2014.
Associate:
Date: 9 April 2014
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