Atwood & Atwood
[2019] FamCA 759
•20 September 2019
FAMILY COURT OF AUSTRALIA
| Atwood & Atwood | [2019] FamCA 759 |
| FAMILY LAW – CHILDREN – Best interests – With whom the child lives – With whom the child spends time – Parental Responsibility – Where the father seeks sole parental responsibility, for the child to live with him and for the child to have no contact with the mother – Where the mother does not seek any orders relating to parental responsibility, time spent with the child nor any workable orders about the parent with whom the child will live – Where there are concerns about the mother’s mental health – Where the child was removed from the mother’s care by the Department of Family and Community Services – Court finds that the need to protect the child from harm outweighs the benefit of a meaningful relationship with his mother – Order made for the father to have sole parental responsibility, for the child to live with him and for the child to spend no time with the mother. FAMILY LAW – CHILD ABUSE – Where the child suffered neglect in the mother’s care. FAMILY LAW – FAMILY VIOLENCE – Court finds that the mother prevented the child from having contact with the father. FAMILY LAW – PROPERTY – Property settlement – Contributions – Adjustments – Where the father seeks the settlement be executed by way of superannuation splitting order using a base amount – Where the mother opposes the settlement occurring solely by way of superannuation splitting order – Where the majority of the property pool is held in superannuation and a controlled moneys account – Where the father seeks to be reimbursed for certain outgoings in relation to the former matrimonial home – Where no balance sheet was provided by the parties – Two pools approach – Adjustment of both pools in favour of the mother warranted by s 75(2) factors – Orders made for the father to be reimbursed for certain costs – Orders made for splitting of superannuation using a base amount and for the balance of the controlled moneys account to be distributed between the parties. |
| Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61B, 61DA, 65DAA, 65D, 65DAC, 75(2), 79, 90XT Australian Passports Act 2005 (Cth) s 11(1)(b) Federal Magistrates Court Rules 2001 (Cth) Family Law Rules 2004 (Cth) rr 6.08, 19.18 Family Law (Superannuation) Regulations 2001 (Cth) |
| Foster & Foster (2012) 47 Fam LR 77 In the Marriage of Lenehan (1987) FLC 91-814 In the Marriage of Norbis (1986) 161 CLR 513 In the Marriage of Shewring (1988) FLC 91-926 In the Marriage of Zyk (1995) FLC 92-644 L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432 McCall & Clark (2009) FLC 93-405 |
| APPLICANT: | Mr Atwood |
| RESPONDENT: | Ms Atwood |
| Independent children’s lawyer: | Legal Aid NSW |
| FILE NUMBER: | SYC | 3943 | of | 2014 |
| DATE DELIVERED: | 20 September 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
HEARING DATE: FINAL DATE FOR SUBMISSIONS: | 9, 10, 11 April, 13 August, 10 September 2018 & 14 December 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Condon Legal Pty Ltd |
| RESPONDENT: | Self-represented |
| advocate for THE INDEPENDENT CHILDREN’S LAWYER: | Ms Karagiannis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting Orders
B born … 2006 (“the child”) live with the father.
Mr Atwood (“the father”) shall have sole parental responsibility for the child.
Ms Atwood (“the mother”) have no contact with and spend no time with the child.
Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the father be permitted to apply for the issue of an Australian travel document and the renewal of same for the child without the consent of the mother being obtained.
The Australian passport issued to the child shall be provided to the father to hold on behalf of the child.
The father be and is hereby permitted to remove the child from the Commonwealth of Australia for the purpose of taking the child on overseas holidays.
As soon as practicable after the delivery of judgment in these proceedings the father is to cause the child to attend upon a family consultant, if convenient in the company of the Independent Children’s Lawyer for the purpose of the orders being explained to the child.
Pursuant to s 62B and s 65DA(2) of the FamilyLaw Act 1975 (Cth) (“the Act”), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Financial Orders
The parents are declared to be entitled to the funds representing the net proceeds of sale of the property situate at M Street Suburb G, held in the controlled moneys account with the Commonwealth Bank of Australia in the proportions 36.9 per cent to the father and 63.1 per cent to the mother.
The Court Noted that Legal Aid NSW claims a contribution of $7,824.25 from each of the parents in respect of the costs of the Independent Children’s Lawyer, unless those contributions have been waived.
Immediately prior to any disbursement to the mother or the father from the controlled moneys account, the parties shall do all things and sign all documents necessary to cause $7,824.25 to be paid to Legal Aid NSW from each parent’s share of the controlled moneys account, provided that such a payment is not required if that parent has by the date of the proposed disbursement, received notice from Legal Aid NSW that his or her contribution to those costs has been waived.
Subject to Order 11, the parties shall do all things and sign all documents necessary to cause the father’s share of the controlled moneys account to be paid to him as soon as practicable after the date of these orders.
The mother shall pay to the solicitor for the father one half of the costs of the father of and incidental to these proceedings, such costs to be as agreed or as assessed by a Taxing Officer. Those costs shall be paid within seven days after the date of the agreement or assessment, as the case may be.
Save for a payment from the mother’s entitlement to the controlled moneys account to meet her obligation under Order 13, there shall be no payment to the mother from that account unless and until the costs due under Order 13 have been paid.
The parties shall do all things and sign all documents to cause, forthwith upon compliance with Order 13, any remaining funds in the controlled moneys account to be paid to the mother or as she may direct.
Except as provided in these orders each of the parties shall retain ownership of any bank accounts, motor vehicles and other personalty in their current possession or control.
Each of the parties shall continue to be solely responsible for any debts in their respective names.
A splitting order in respect of the interest of the father in Super Fund 1 Personal Plan (“the Fund”) in the following terms to effect a split to the mother in an amount of $62,400.
(a)that Paragraphs (a) to (i) (inclusive) of these orders are binding on the Trustee of the Fund.
(b)that the base amount allocated to the mother out of the interest of the father in the Fund is $62,400.
(c)that pursuant to s 90XT(l)(a) of the Act, whenever a splittable payment becomes payable in respect of the interest of the said father in the Fund that the mother shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount and there be a corresponding reduction in any entitlement of the person to whom the splittable payment would have been made but for these orders.
(d)that Order (18)(c) has effect from the operative time.
(e)the operative time for the purpose of order (18)(d) of these orders is four business days after date of service of these Orders on the Trustee of the Fund.
(f)the mother shall within 14 days of becoming entitled to receive a superannuation benefit from the Fund, provide to the Fund all such forms as necessary to enable it to determine the nature and quantum of the superannuation entitlement and any other related information it may reasonably require.
(g)that there be liberty to apply to each party and Trustee in relation to the implementation of these Orders effecting the Superannuation interest.
(h)that until such time as the Superannuation split to the mother pursuant to these Orders can be rolled over onto a separate account of the mother that:
(i)the father shall provide the mother no less than 28 days’ notice in writing before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accepts or becomes entitled to access in whole or in part his entitlement in the Fund.
(ii)the father shall direct and authorise the Trustee of the Fund to communicate with the mother and/or any person authorised by him in writing:
A.to answer any reasonable enquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Fund; and
B.to provide the mother and/or her authorised representative a copy of any notice of any application or request by the father which seeks release of entitlements in the Fund insofar as that release may effect the mother’s entitlement in the Fund pursuant to these Orders.
(iii)the father by himself, his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the mother or her nominees, to the extent permitted by law, from receiving the benefits in the Fund to which she is entitled to pursuant to these Orders.
(i)in the event that the Superannuation split to the mother pursuant to these Orders can be rolled over into a separate account to the mother each of the parties hereto shall each do such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
The Court Noted that the trustee of Super Fund 1 has advised that in order to comply with relevant legislation, the mother must advise the trustee of her date of birth and residential address prior to these orders being served on the trustee.
The Court Noted that the father agreed that he will make no claim in respect of the mother’s copyright in any future written works authored by her.
Leave is granted to the parties to apply in relation to the wording of these orders within 28 days and on giving at least seven days’ notice to the Court and each other.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Atwood & Atwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| Family Court of Australia at Sydney |
FILE NUMBER: SYC3943 of 2014
| Mr Atwood |
Applicant
And
| Ms Atwood |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for settlement of property and parenting orders about B Atwood who was born in 2006 (“B”). The parties are Mr Atwood (“the father”) and Ms Atwood (“the mother”). Each seek orders for the settlement of property. The father also seeks parenting orders in relation to B. The mother opposes those orders.
Applications
According to his case outline, the father sought the following orders:
1.That the Applicant Father have sole parental responsibility of B
2.That the child B shall reside with the Applicant Father.
3.That the child B have no contact with the Respondent.
And
Pursuant to s79 of the Family Law Act1975 (Cth), the net proceeds of the sale [of the property situate at M Street, Suburb G] be paid accordingly:
a.80% of the net proceeds of sale to the Applicant Father
b.The remaining 20% of the net proceeds of sale to the Respondent Mother, payable from the Applicant Father’s superannuation (sic).
And
That the respondent mother reimburse the Applicant Father for the sum of $2,680.00 (from the Respondent Mother’s 20% share of the net proceeds) for outgoings paid by the Applicant Father in relation to the sale of the former matrimonial home situate at M Street, Suburb G being:
i.$640 paid to have the locks changed and to gain access to the unit
ii.$440 paid for rubbish truck and rubbish removal
iii.$1600 paid for cleaning and cleanup of unit
As to personal property the father sought:
1.In the event that the Respondent Mother has not by the time of final Orders being made by this Court handed to the Applicant Father the items listed below which are currently in the possession of the Respondent Mother, then the Respondent Mother be ordered to hand over to the Applicant Father within 7 days of the date of these Orders the following:
a.Model brand 1: 10 items
b.Model brand 2:22 items
c.Model brand 3: 4 items
d.Model brand 4: 2 items
e.Model brand 5: 2 items
f.Model brand 6: 5 items
g.Other: 4 items
h.Items owned by third parties: 7 items
i.Computer and Accessories
i.1 x Computer
ii.1 x Imation hard drive
iii.1 x Toshiba hard drive
j.Bike:
i.1 x push bike with helmet
k.Bank Account
i.Shares
ii.Super
2.In the event the property listed in Order 1 above is not returned or unable to be returned to the Applicant Father and others, that the Applicant father be paid from the Respondent Mother’s 20% of the net proceeds of the net proceeds from the sale of the unit, the following:
a.Mr Atwood Property: $38,000.00
b.Mr AA property: $15,000.00
c.Mr R Atwood Property: TBD
d.Mr BB Property: TBD
e.Mr CC Property: TBD
f.Mr DD Property: TBD
g.Mr EE Property: TBD
3.That as between the Applicant Father and the Respondent Mother, and subject to the above Orders, the Applicant Father and the Respondent Mother shall each respectively retain all interest in and entitlement to:
a.All personal property now in his/her possession or control except for what is noted in Property Order 1-2 above.
b.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
c.All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
By his case outline, the father sought that the mother pay his costs of the proceedings.
In a document styled “Amending Response” filed 14 March 2018 the mother set out the following orders sought:
1.All copyright material, the name Ms Atwood from Sydney be granted to me with no claim ever by Mr Atwood and/or third parties connected to him.
2.50% super contributions + returns
4/7/06 9/7/07
25% 10/7/07 13/3/14
3.Repayment of 50% of expenses paid towards unit since separation ie. mortgage, strata, rates, cleaning products for squalor.
4.B is months short of being 12. He advise his living situation
5.75% of property sale due to contributions of marriage, caring for B, attempted improvements
5.$7,000 repayment for personal loan undertaken to stop bankruptcy proceedings from strata primarily due to Mr Atwood’s behaviour, lack of payments
6.Reimbursement for the theft and loss of vintage material, first day covers, stamps, coins, Olympic pins
7.Loss of potential income for missing/destruction/lost research on Mr GG.
8.Loss of passport
In a document titled “Amended Initiating Amending Response” (exhibit 4) the mother advised:
in addition to / amending point 2
Point 3cost of cleaning in previous financial statement
Point 5$30,000 to include cost of preventing bankruptcy + time involved to said paint
Point 6Jewellery
Point 9B’s nab account remains my sole responsibility and its tax implications only
During final submissions the mother said that she also sought a payment of $5,000 to enable her to obtain a divorce.
The only parenting order sought by the mother is at paragraph 4 of her Response. As B lived with the mother for all of his life until 5 June 2015 and she had been his primary care giver, it is remarkable and concerning that she would seek only that order. However, in the case document she filed on 14 March 2018 the mother confirmed the order she sought but expressed it in slightly different terms:
…
C Parenting Orders Sought
B to decide as close to age of 12 and Court has precedent for this.
…
The Independent Children’s Lawyer’s (“ICL”) proposals were set out in a document submitted during final submissions on 13 August 2018[1]. Given the mother’s reaction, the order proposed at paragraph 7(a) was not pressed. The ICL sought:
[1] Exhibit 1
1. That the child of the marriage namely, B born … 2006 (hereafter ‘the child’) live with the father.
2. That the father have sole parental responsibility for the child.
3. That the mother have no contact with the child.
4. Within 7 days of these orders, the father facilitate the child to engage with the ‘Kids and Young People’ section of the on line resource ‘Children of parents with a mental illness’ at
5. Pursuant to s 11(1)(b) of the Australian Passports Act the father be permitted to apply for the issue of an Australian travel document and the renewal of same for the child without the consent of the mother being obtained.
6. That the Australian passport issued to the child shall be provided to the father to hold on behalf of the child.
7. That the father be an is hereby permitted to remove the child from the Commonwealth of Australia for the purpose of taking the child on overseas holidays provided that the father gives to the mother:
a)…
b)An itinerary detailing the proposed dates of departure and return and where the child will be travelling
8. The father shall facilitate the child’s attendance at any reasonable assessment that may be requested by the Independent Children’s Lawyer
9. That the Independent Children’s Lawyer have leave to provide the child’s paediatrician or other therapist with a copy of the following documents:
a.the family report
b.the reports of the single expert and
c.the final orders
10. The order for the appointment of the Independent Children’s Lawyer shall continue for a further period of 6 months following the date of these orders.
11. That each party contribute to the costs of the Independent Children’s Lawyer within 3 months of the date of these orders.
During final submissions the advocate for the ICL sought an order that each of the parents pay $7,824.25 towards the costs of the ICL. It was the mother’s evidence that she had applied for a waiver of the fees. The father too sought a waiver. There was no evidence before me as to the outcome of the applications for waiver.
Written Evidence
Trial directions were made on 20 December 2017. Among other orders, the following order was made:
2.The parties file and serve their evidence of any lay witnesses by the close of business on 9 March 2018, that is to be one consolidated affidavit from each deponent.
The father relied on:
·Affidavit of the father sworn 2 March 2018 and filed 6 March 2018
·Affidavit of the father sworn and filed in court on 13 August 2018
·Financial Statement sworn by the father on 2 March 2018 and filed 6 March 2018
·Affidavit of Ms S Atwood sworn 2 March 2018 and filed 6 March 2018
·Affidavit of Mr U sworn 3 July 2017 and filed 4 July 2017
Notwithstanding the order made on 20 December 2017, in her case document filed 14 March 2018, the mother indicated that she relied on many affidavits, including affidavits sworn by the father and by his witnesses and 10 affidavits sworn by her for the purposes of interlocutory proceedings. As is discussed below, the mother ultimately relied on her affidavit filed 14 March 2018 and also gave some oral evidence in chief. The mother relied on:
·Affidavit sworn by the mother on 9 March 2018 and filed 14 March 2018
·Financial Statement sworn by the mother on 9 March 2018 and filed 14 March 2018
Two affidavits were filed by officers of the Department of Family and Community Services (“FACS”)[2] at times when the Secretary of that Department was a party to the proceedings. During submissions the ICL’s advocate also sought to rely on a second affidavit of Ms T sworn and filed 12 June 2015. It transpired that the affidavit was in fact sworn by Ms W. Ultimately the ICL relied on those affidavits:
·Affidavit of Mr Z sworn 15 June 2016 and filed 17 June 2016
·Affidavit of Ms T sworn and filed 12 June 2015
·Affidavit of Ms W sworn and filed 12 June 2015
[2] Since the hearing the name of the department was changed to the Department of Communities and Justice.
Expert Evidence
The following expert evidence was relied on:
·Report of Dr H dated 6 November 2015
·Report of Dr H dated 5 April 2016
·Report of Mr Q dated 15 November 2017
·Addendum to Report of Mr Q dated 6 March 2018
The Hearing
The final hearing was listed over four days commencing on 9 April 2018. The father was represented by his solicitor and the ICL was represented by an advocate from NSW Legal Aid. As had been the situation throughout the proceedings, the mother did not have legal representation. Suffice it to say the mother was at a significant disadvantage. She said that she had not qualified for legal aid and she had not been able to find a lawyer willing to act on a pro bono basis.
The mother said that she had not brought all of the relevant documents to Court. The mother said that she had not read the father’s affidavit and I understood her to say that she would not read the father’s affidavit. The mother’s affidavit contains little if any evidence. I understood her to say that she would have liked to have included more information in her affidavit.
The advocate for the ICL suggested that the mother might like to give some oral evidence in chief. I asked the mother about that and she said she would. I spoke to the mother about preparing a proof of the evidence she was going to give and she said something to the effect that she could not or would not prepare such a proof. Notwithstanding that there was no proof of evidence to assist the Court or the other parties, the mother gave additional evidence in chief on the second day of the trial. The mother’s cross-examination and re-examination concluded at the end of the second day of the trial.
Arrangements were made to commence one hour late on Wednesday, 11 April 2018 to suit the convenience of the mother who said she had an appointment with an unidentified government agency. When the matter was called at 11.00 am on 11 April 2018 the mother said that she was ill and that she could not remain at court. There were brief negotiations about a suitable date to complete the trial and ultimately 13 August 2018 was identified as the first date that was convenient to the Court and all of the parties. The adjournment occurred at the close of the mother’s oral evidence, with the remaining stages of the trial being the mother tendering further documents, cross-examination of the single expert Family Consultant and submissions. The following orders were made on 11 April 2018:
1.The proceedings are adjourned to 10.00 am on 13 August 2018 after the close of the mother’s case save for the mother tendering the documents in her case, for the purpose of cross-examination of the single expert Mr Q and for the purpose of submissions.
2.Notice be given to the trustee of the father’s superannuation fund of the format of the orders sought on behalf of the father for a splitting order as soon as practicable.
3.By consent of the father and the Independent Children’s Lawyer the father do all things and sign all documents as soon as practicable to cause the child to be referred to a paediatrician to be nominated by the Independent Children’s Lawyer.
4.Leave is granted to the Independent Children’s Lawyer to provide the paediatrician with such of the material produced for the purposes of these proceedings as the Independent Children’s Lawyer considers appropriate.
5.It is directed that if practicable, the mother provide to the solicitor for the father and to the Independent Children’s Lawyer a copy of the documents to be tendered in her case not later than 14 days prior to the adjourned date.
6.The question of the costs of and incidental to the proceedings are reserved.
On 13 August 2018 the hearing resumed. The appearances were as they had been in April 2018. The father relied on a further affidavit which was sworn by him on 13 August 2018 (addressing the response of the trustee of the father’s superannuation to a proposed superannuation splitting order). The ICL tendered two reports from a paediatrician, Dr X to whom B had been referred. Family Consultant Mr Q was cross-examined. The mother tendered a number of documents. Before doing so the mother warned that some of them were affected by damp and cockroach faeces. For the benefit of staff and judicial officers who might need to examine, transport or store those documents, each of the mother’s tenders was only handled by a Court Officer who wore gloves and was placed in a separate plastic sleeve.
Oral submissions were made by the ICL’s advocate and by the father’s solicitor. At about 4.00 pm I called on the mother to make her submissions and she sought an adjournment. She said that she did not feel able to make her submissions. She said that she felt unwell and invited me to call for an ambulance. I understood that last invitation to be by way of indicating to me the sincerity of her application rather than a need to be transported to hospital per se. I adjourned the matter to 10 September 2018. The following orders were made:
1.The proceedings are adjourned to 10.00 am on 10 September 2018 for the purposes of completing the submissions for final proceedings for parenting and property orders.
2.The mother provide on the adjourned date any documentary evidence available to her of the current balance of any currently outstanding debt to the Australian Taxation Office and/or to any other creditor and that she provide documentary evidence of the current balance of her superannuation interest.
NOTATIONS
3.The Court notes that the proceedings are adjourned at the conclusion of the submissions on behalf of the Independent Children’s Lawyer and on behalf of the father and prior to the commencement of the mother’s oral submissions.
4.The Court notes that without leave no further evidence will be admitted on the adjourned date save for any document required by Order 2 and the costs advice letter on behalf of the father.
When the matter was called on 10 September 2018 the mother said that she was ill and sought an adjournment of the hearing. The adjournment was not consented to by the father or the ICL. Much of the subtext of the proceedings is the mother’s compromised health. I adjourned the proceedings to Friday, 16 November 2018. Prior to adjourning the father’s costs advice document was tendered and made an exhibit. The advocate for the ICL sought an interlocutory order to address a concern raised by Mr Q. Mr Q reported that B may feel that his separation from his mother may in some way be his fault. After hearing from the parties I made an order requiring the father to facilitate B attending upon the ICL and Mr Q for the purpose of him being disabused, if possible, of the suggestion that he is in any way responsible for his separation from his mother. I reminded the mother of the orders made on 13 August 2018 about her providing written evidence of any debts she owes, including any debt to the Australian Taxation Office (“ATO”), together with evidence of the balance of her superannuation interests.
On 10 September 2018, the following orders were made:
1.The proceedings are adjourned to Friday, 16 November 2018 for the completion of oral submissions for the trial.
2.The father’s cost advice notice is exhibit 41.
3.Otherwise, the orders and notations made on 13 August 2018 apply to the adjourned date.
4.The father is to facilitate the attendance of B upon the Independent Children’s Lawyer and if practicable, Family Consultant Mr Q, on a date convenient to the father, in order that B be reassured that he bears no responsibility for his current living arrangements and the fact that he does not currently spend time with his mother.
On 16 November 2018 the appearances were as they had been on the other dates. The mother tendered documents in relation to her health, taxation liability and superannuation. She said that she had accidentally left some related documents at home. The mother made oral submissions. The father’s solicitor provided written submissions about costs. The following orders were then made:
1.The mother has leave to lodge any further documents in relation to her debt to the Australian Taxation Office and the current value of her superannuation interests, together with any written submissions the mother wishes to make in relation to the issue of the costs of the proceedings. Those documents are to be lodged with the Court and provided to the other parties within 28 days from today’s date.
2.Otherwise judgment is reserved and the parties are excused from attending Court when judgment is delivered.
The Mother’s Capacity to Conduct her Case
A number of matters gave rise to some concern about the mother’s capacity to conduct her case. For example:
·the mother sought orders that the Court could not or would not make. For example, the parenting order sought by the mother was to the effect that B should make his own decisions.
·I take it that the mother intended by that wording to seek an order that parental responsibility, including decisions about his living arrangements be left to B. I informed the mother that the Court would not make such an order.
·some of the orders sought by the mother by way of property settlement are not within the Court’s power.
·the mother’s trial affidavit contains a series of assertions, largely about matters that are not relevant to the dispute between the parties. The affidavit contains very little evidence about anything.
·as is referred to above, the mother refused to read the father’s trial affidavit. That meant that the mother could not effectively cross-examine the father.
·the proceedings, including the final hearing were adjourned on several occasions because that the mother advised that she was unwell.
As those matters became apparent I raised with the parties the question of whether the mother had the capacity to conduct her own proceedings. I explained that if she did not, the final proceedings would need to be stayed pending the appointment of a Case Guardian.
After considering the issue I indicated to the parties that the final hearing would continue. What follows are the reasons for that decision.
The Dictionary to the Family Law Rules 2004 (“the Rules”) contains the following definition:
person with a disability, in relation to a case, means a person who, because of a physical or mental disability:
(a)does not understand the nature or possible consequences of the case; or
(b)is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case
Rule 6.08 of the Rules provides:
RULE 6.08
Conducting a case by case guardian
(1)A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.
(2)Subrule (1) does not apply if the court is satisfied that a child understands the nature and possible consequences of the case and is capable of conducting the case.
Note1: For service on a person with a disability, see rule 7.09.
Note 2: If a case is started by a child or person with a disability without a case guardian, the court may appoint a case guardian to continue the case.
As to whether the mother’s difficulties arise as a result of a physical or mental disability, Dr H is a forensic psychiatrist and he interviewed the mother on 4 April 2016. That was the second appointment made for the mother to see Dr H as she had failed to attend for an earlier assessment in November 2015. The mother attended on 4 April 2016 albeit that she was 30 minutes late for the appointment. The mother insisted on recording her interview with Dr H and was unwilling to provide him with any identifying details including her date of birth, contact address or phone number. She was unwilling to discuss any aspect of her own living arrangements as she insisted that she was only attending to discuss B and she could not see the relevance of such information. Similarly, the mother refused to provide Dr H with any information about her social supports, work history or mental health treatment. She said that any relevant information was accessible in documents produced to the Court and that there was no need for her to provide it.
Dr H observed the mother to be neatly groomed, to establish direct eye contact and to have a sombre tone and restricted affect. He observed her to speak in a pedantic manner giving an organised account of B’s development but she was unwilling to address any peripheral or unrelated matters. Dr H considered that the mother’s thoughts were generally well organised but there was evidence of her having pressured thoughts and tangential thinking when he interviewed her with B.
In Dr H’s opinion the mother had limited insight into her circumstances and was unwilling to address core issues related to her parenting capacity. The only personal issue she acknowledged was that she had not spoken to her own family for 20 years on the recommendation of “clinical forensic psychologists”. On the other hand she told Mr Q that she had some contact with family members who live in Sydney. Relevant to the issue of the mother’s capacity, Dr H observed that the mother “presented with an abnormal mental state examination”. He said that there was evidence in her of an abnormal affect, overvalued ideas, abnormal thought process and a lack of insight. Dr H said that although the mother was unwilling to provide any account of her developmental history, current circumstances or emotional state, she acknowledged a disruptive developmental experience in her family of origin. She was preoccupied with her own alleged experience of domestic violence and in assisting victims both in Australia and in Saudi Arabia. She told B that she was not currently able to work and had limited finances. To Dr H, her presentation was indicative of a Personality Disorder with evidence of a more significant mental illness, most likely a Delusional Disorder. Her suspiciousness and hostility towards the assessment process was thought by Dr H to be consistent with that observation.
There is no indication that the mother was willing to attend for a psychiatric assessment and treatment, which Dr H reported, was clearly indicated. Although Dr H thought that it was possible that the mother may benefit from anti-psychotic medication in combination with psychotherapy, the mother was unwilling to consider any issues related to her own mental health. The mother was preoccupied with and highly critical of the health professionals and educators involved in the care of both her and B. Dr H thought that that would impair her capacity to engage with therapeutic initiatives.
In L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432 the Full Court of the Federal Court was dealing with an appeal from a decision of a Federal Magistrate to order a party to have a psychiatric assessment. The Full Court outlined the requirements of the Federal Magistrates Court Rules 2001 (Cth) in relation to the appointment of a litigation guardian as follows:
WHETHER THE FEDERAL MAGISTRATE’S APPROACH WAS ERRONEOUS
28 If a litigant appears to be lacking capacity such as to require the appointment of a litigation guardian, Div 11.2 of the Rules provides a mechanism by which that issue may be dealt with. Under r 11.11, the Federal Magistrate, either on the application of a party or on the Federal Magistrate’s own motion, may consider whether the party needs a litigation guardian. If he or she does not, the case proceeds. If a litigation guardian is required, the court may appoint one pursuant to r 11.11. The rule does not, however, contemplate the course adopted by the Federal Magistrate.
29 Rule 11.08 prescribes the circumstances in which a person “needs” a litigation guardian. The circumstances, expressed as alternatives, are that “the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding”. Rule 11.09(1) is then quite specific in its requirement that a person who needs a litigation guardian “may...continue...as a party to a proceeding only by his or her litigation guardian”.
30 The Federal Magistrate did not follow the course provided for by the Rules. Instead he made orders, in particular Orders 4 and 7, that did not in terms conclude the proceedings, but which had that practical effect. To escape from the operation of these orders, the onus was placed on the appellant to prove her capacity.
31 We do not think that the Federal Magistrate was entitled to make orders which had that effect. His discretion in that regard miscarried. If the Federal Magistrate entertained serious doubts about the capacity of the appellant to conduct the proceedings, and the respondents were not prepared to make any application in that regard, the Federal Magistrate should have proceeded directly under the relevant rule.
32 For the future, some general comments about the operation of Div 11.2 may be of assistance. In proceedings in which the need for a litigation guardian is a potential issue and the party whose capacity is in question is represented by a legal practitioner, the discharge of that practitioner’s duties to their client and to the Court should ordinarily mean that a litigation guardian will be appointed if, within the meaning of r 11.08(1) the client in fact ‘needs’ one. If the concern arises on the part of a represented party in an opposing interest, that party may be expected to raise the issue before the Court. In either case, it may be expected that, as a practical matter, medical evidence bearing upon the issue of “need” will be placed before the Court.
33 Where, as here, the applicant is unrepresented and the respondent does not wish to raise any point about competence but the court nevertheless has serious doubts about the applicant’s capacity, the court should consider of its own motion the factual issue of “need”. In such a case the court should, of course, raise the issue squarely and should give the applicant and any other affected party a proper opportunity to be heard and to place relevant material before the court. Whether, in the absence of medical evidence as to capacity, the court could be satisfied of the “need” such that it should act on its own motion under r 11.11(1) to appoint a litigation guardian will of course depend upon the circumstances of a particular case.
[Original Emphasis]
The observations in L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432 have been adopted in this Court. See for example, Foster & Foster (2012) 47 Fam LR 77.
Here, the issue of the mother’s competence was raised by the Court of its own motion and not by any of the parties. There is a presumption in favour of competence. The fact that the orders sought by the mother are unlikely to be made or would never be made, is insufficient to support a finding that the mother meets the definition in the Rules of a person with a disability. The mother had filed documents, attended at Court and made submissions. In my view, the mother did not require a case guardian.
For completeness I should record that I imagine that it would be very difficult to find a suitable case guardian in this instance. There would be both cost and delay in that exercise, in proceedings that have already involved considerable delay and where there is a small asset pool.
For those reasons I continued with the hearing.
Short History
The father was born in 1972 and as at the conclusion of the hearing he was 46 years of age. The mother was born in 1969 and at the conclusion of the hearing she was 49 years of age. The parents met in 1999, were married in 2002 and separated on a final basis in March 2014. B was born in 2006.
Credibility and Submissions
The father was not successfully challenged on any particular aspect of his evidence. Of course, the mother was hampered in any quest to challenge the father’s evidence by the fact that she did not read his trial affidavit.
The mother’s evidence was discursive and tangential to the proceedings. However, I do not recall any relevant matter in respect of which her credit was called into question. In respect of the parenting proceedings the mother had no viable proposals which could be assessed against those of the father. In that sense, none of the factual disputes are relevant to the outcome of the parenting proceedings.
Mr Q gave evidence as an expert and his credit was not in issue. That is not to say that he was unchallenged by the mother but suffice it to say that she was not successful in those challenges. The mother seemed critical of the fact that Mr Q had not recorded notes of certain topics that she said arose during his observations of her and of her and B. It appeared that the mother was of the view that Mr Q’s task involved taking a largely complete record of what was said and done during his observations. Of course that was not his role. Mr Q was obliged to express professional opinions in the case on issues within his qualifications and experience, to demonstrate that he had qualified himself to do so and to answer any challenge to those opinions. There was no meaningful challenge to Mr Q’s report and I accept his opinions.
I should say that the mother’s oral submissions included representations about various matters. The mother asked that she not be interrupted in her submissions and the lawyers for the father and the ICL and I respected that request. There were many critical, demeaning and/or insulting references to the father, his parents, his solicitor, Dr H, Mr Q and NSW Legal Aid. Where those comments could be relevant, there was little or nothing in the evidence to support those comments.
Background Facts
There is little probative evidence presented in the mother’s case and in that she had deliberately not read the father’s affidavit, she made little or no challenge to his evidence. The result is a set of background facts largely sourced in the school and FACS records and the unchallenged evidence of the father.
In June 1999 the parents met at a function at a sports club. Thereafter they became friends and among other activities, attended sporting events together.
The father assisted the mother with her accommodation, paying a rental bond for her.
In 2001 the parties became engaged and were married in 2002.
Each of the parties was in paid employment at the commencement of the marriage.
Neither of the parties had any significant assets at the commencement of their marriage, save that I assume that the father had some superannuation.
In 2005 the parties purchased M Street, Suburb G (“the Suburb G unit”) and moved into that property in October 2005.
In 2006 B was born. He is the parents’ only child. The mother took 12 months maternity leave from her employment and the father had four weeks annual leave at the time of his birth.
B did not feed well in the first few weeks and the parties were advised by Hospital 1 to commence bottle feeding. The father contends that thereafter the parents equally shared the task of feeding B until he ceased using bottles. That seems unlikely given that the father was probably not available for much of each day of the working week.
It is the father’s evidence that the mother was not able to maintain the home and that he cleaned up each evening after work, only to find that the home was disorganised and messy when he returned home from work the next day.
At the suggestion of the family GP, Dr OO, arrangements were made for B to begin attending at a Day Care at Suburb L at the age of approximately six to nine months.
The mother usually dropped B off and collected him from day care.
In January 2008 the father changed jobs. Thereafter, the mother dropped B off in the morning and the father collected him from day care each afternoon.
The father continued to cook most evening meals and did housework when he returned home.
In late 2008 B was moved to a day care facility at Suburb HH, where he attended three days a week.
From 2008 the parents ceased to sleep together, the father occupying the main bedroom and the mother generally sleeping on the lounge.
The father contends that in 2008/2009 he observed that the mother was succeeding in controlling B’s behaviour.
In early 2010 B was diagnosed with Dyspraxia and underwent speech therapy. The father believes that frustration with his speech caused B to act out, hitting other children and being disrespectful to the mother.
In about April 2010 the parents were told that because of his poor behaviour, B could no longer remain at the day care centre. They moved him to a centre at E Town. The mother mainly delivered him and collected B to and from the centre.
Initially, B settled in well at the E Town day care centre but in October 2010 the parties were asked to remove him because of his poor behaviour. The father contends that the mother believed that B suffered from a disability and was incensed by the thought that he was being discriminated against by the day care centre because of that disability.
In February 2012 B commenced at Suburb G Public School. The parents both took him on that day. He remained at that school until mid-2015 when he was moved to Suburb JJ Public School in circumstances that will be addressed later in these reasons.
In March 2014 the parents separated on a final basis. On 13 March 2014 the father received an email[3] from the mother informing him, among other things, that as he had not paid the mortgage instalments, the locks had been changed at the Suburb G unit, and he (the father) was no longer welcome there and should arrange to collect some of his possessions.
[3] Annexure B to the father’s affidavit sworn 2 March 2018
On 26 April 2014 the first report was made to FACS about B. B was reportedly injured while jumping on his bed and he required stitches. Two other incidents were reported at that time, one in which the mother was said to have thrown a phone against a wall and another when she threw a lamp across the room during an argument with B. The report was deemed not to meet the FACS threshold for Risk of Significant Harm.
From May to November 2014 the father did not see B.
In September 2014 the father was contacted by someone at Suburb G Public School about B’s deteriorating behaviour and the fact that the school had been unable to adequately communicate with the mother.
On 27 June 2014 these proceedings were commenced when the father filed an Initiating Application seeking both parenting and property settlement orders. As to parenting orders, the father sought that the parents have equal shared parental responsibility for B and that, in broad terms, he live with the parents in an equal time arrangement.
On 3 November 2014 an order was made appointing an ICL for B and providing, by consent, for the father to have supervised time with him. The mother nominated a Mr KK as the supervisor and the father commenced having supervised time. On 16 November 2014 the supervisor complained to the father about the mother’s behaviour.
On 21 November 2014 FACS received another report about B. He had been suspended from school on two occasions in three weeks. Again, the report was deemed not to meet the threshold for Risk of Significant Harm.
On 15 December 2014 the matter was back before the Court. On 19 December 2014 FACS received another report about B, prompted by safety concerns at the mother’s home. Again, the report was deemed not to meet the threshold for Risk of Significant Harm.
On 2 February 2015 FACS received another report about B. He had attended school on 30 January 2015, not wearing any underwear and had exposed himself to other children at the school. The reporter also raised the following concerns:
·B often attended school with his shirt inside out or back to front and the mother said that it was easier to allow B to dress the way he likes, to avoid arguments.
·the reporter had spoken to B about not wearing underwear and B said that he had been in a rush and had not been wearing underwear all holidays.
·B will often come to school exhausted after spending periods of time at the police station while the mother made police reports.
·the mother often talks to B about his “daddy being a bad man” and informs B, when B misbehaves, that he is a bad man like his father and will end up in gaol.
·B is violent to other children and has been suspended a number of times but this has been ineffective because the mother will not attend the school for resolution meetings.
Again, the report was deemed not to meet the threshold for Risk of Significant Harm.
On 19 February 2015 FACS received another report, this time concerning B’s body odour at school. The reporter indicated that school staff had observed that B’s clothes were unclean and his feet were smelly. The reporter indicated that hygiene had been an ongoing concern for B and described his behaviour at school as “shocking”. The reporter raised the following concerns about the mother’s parenting capacity:
a.The mother relies on B as a support person, for example when the mother attends at a police station to make a statement.
b.The mother has on occasion stated to B, “you’re going to end up in gaol, you’re worse than your father”.
c.The mother appeared unable to encourage B to follow instructions and would excuse B’s behaviour.
Again, the report was deemed not to meet the threshold for Risk of Significant Harm.
On 3 March 2015 a Monthly Allocation Interagency Meeting was held in relation to the reports received about B. It was decided that the family would be referred to appropriate services for assistance.
The school continued to contact the father on a regular basis for the first two terms of 2015.
On 11 March 2015 an application was made to the Court by the father that B be placed in his care. The mother disclosed that there was no hot water at her residence. The Court made a request that FACS intervene in the proceedings.
On 25 March 2015 B was interviewed at school by FACS officers. The deputy principal said that B is a good child, and that he has no formal mental health diagnosis but had a support person in class on two days each week. However, the mother had recently disengaged from the school. FACS officers tried to visit the mother and were not able to do so. They left messages for the mother. On 26 March 2015 the mother rang the FACS officers and she and they spoke about:
·the mother’s financial situation, she was trying to overcome bankruptcy. She reported that the father had a gambling addiction and had failed to pay bills.
·the “squalor mess” at her residence which the mother said the father had left behind when he left.
·the difficulty the mother faces getting B to shower. The mother said that this had been an ongoing problem but the previous school principal had considered it better not to put things in writing.
·when asked about B’s disability the mother said that it would not have been obvious in a short interview and that he had dyspraxia.
·a home visit was planned for 2 April 2015.
On 2 April 2015 two FACS workers attended at the Suburb G unit. They found the home extremely cluttered with minimal walkable floor space. The living arrangements had the mother sleeping on the couch as her bedroom was used for storage. B slept on a mattress on the floor of his bedroom, which was also cluttered. The mother told the workers that she would contact them in the following week about obtaining more suitable accommodation.
It was decided between FACS officers that while significant concerns were held for the condition of the home, it did not represent an immediate risk to B.
On 13 April 2015 FACS received a report in relation to an incident that had occurred on a Sydney ferry on 10 April 2015. The reporter stated that a young boy had been hit by his carer (a person referred to as “Mr LL”) and consequently had a nose bleed. The reporter stated that initially the carer indicated he had hit the boy, stating “you don’t know what he is like”, but later stated that the boy had fallen over. The reporter also stated that New South Wales Police and the boy’s mother attended, noting that the mother appeared to blame the boy for the incident, and that the boy appeared to have wet his pants and his hands were shaking. The report was closed as the reporter could not provide any identifying information and a search of KIDS (the FACS computerised system) did not reveal a police report in relation to the incident. FACS workers understood that the report of 13 April 2015 was a reference to the same incident described by the mother as occurring on a Sydney ferry and that “Mr LL” is a person by the name of Mr LL2 who has previously cared for B. He is also referred to in FACS notes as “Mr LL3”.
Also on 13 April 2015 a FACS caseworker telephoned the mother to follow-up on the home visit of 2 April 2015 and to discuss FACS providing assistance to the mother in relation to cleaning the apartment (which the worker stated was a fire hazard) and fixing the hot water system. During that conversation the mother reported that she had been offended by the conduct of one of the FACS workers during the home visit, that she was “time poor” and could not commit to taking calls from FACS. It was also during this phone call that the mother informed the worker that police had been called to an incident involving B on a Sydney ferry, as discussed above.
On 16 April 2015 FACS received a Risk of Significant Harm report in relation to the incident on the Sydney ferry and the matter was referred to the Joint Investigative Response Team (“JIRT”) Referral Unit because there were concerns that the mother was not being protective of B. The referral was rejected by JIRT because B did not have a severe or serious physical injury and there had been prior police involvement. The matter was referred to the Community Service Centre (“CSC”) for further assessment and intervention. A worker attempted to call the mother on 22 April 2015 and left a voicemail message for the mother to return the call. On 7 and 8 May 2015 a worker attempted to contact the mother to arrange a meeting. The mother and the worker exchanged text messages in which the mother indicated that she was unable to spare any time to meet with the worker. On 12 May 2015 the worker telephoned the deputy principal of B’s school in relation to an upcoming meeting at the school and during that conversation the deputy principal told the worker that the mother had not been in contact with the school during the year but had all her dealings with the disability worker.
On 14 May 2015 a meeting was held at B’s school. The mother, the deputy principal, the principal, B’s disability advocate, B’s teachers, a student caseworker and the FACS worker attended. During the meeting the school staff discussed B’s progress and indicated that B was following the behavioural charts. The school staff also enquired about B needing glasses and the mother stated that school should have realised that B needed them. The worker understood from the meeting minutes that the mother gave negative feedback to the school stating that, “B is good at disguising things and so what they were doing was not really working”. During discussions after the meeting the mother refused all assistance offered and stated that FACS should have been involved last year not this year. B’s disability advocate told a FACS worker that Gunther has Tourette’s syndrome and cares for B after school. The mother told the FACS worker that she had been engaged with Ms F, a caseworker at FF Financial Counselling.
On 15 May 2015 the mother signed a letter approving the sharing of information between FACS and FF Financial Counselling. On 19 May the mother sent a text message to B’s disability advocate and a FACS worker, raising concerns about her health and B’s health and withdrew the authorisation allowing FACS to deal with Ms F.
On 19 May 2015 leave was granted to the Secretary of FACS to intervene in these proceedings.
On 21 May 2015 a Safety and Risk Assessment (“SARA”) was completed by FACS in relation to B. The SARA indicated that B was not in need of care and protection but it also recorded “when thinking about the long-term effects of B’s living arrangements with his mother, there is reason to believe that B will be in need of care and protection”. As a result of that assessment B’s care plan remained open with the CSC. On 21 May 2015 a FACS worker attempted to contact the mother by telephone and left a message for the mother to ring back. On 22 May 2015 a FACS worker sent a text message to the mother requesting that she text the worker with a convenient time for FACS workers to conduct a home visit. On 26 May 2015 a further attempt was made to contact the mother by telephone and text message. In the text message the FACS worker requested that the mother provide her with a convenient time to meet. In a voicemail message left for the mother, the worker informed the mother that she would attend at the mother’s home if the mother did not respond to her call within the next hour. Later on 26 May 2015 the FACS worker received a text message from the mother in response to the attempts to contact the mother. In that message the mother said that she was unable to confirm a timeframe for a visit, that the FACS worker’s attempts to contact her were “excessively harassing” and that she would “only deal with DOCS in writing”.
Also on 26 May 2015 the FACS worker telephoned the deputy principal of B’s school and was told that the boy was at school and had a cough the previous day. On 27 May 2015 the FACS worker sent the mother a letter by registered post in which she provided the mother with three possible dates for a home visit. The worker also informed the mother that she would communicate with her in writing and that if the mother did not respond to the letter by 29 May 2015 the worker would conduct an unannounced home visit.
On 2 June 2015 FACS workers made three attempts to conduct a home visit at the mother’s unit. The mother did not respond on any of the occasions and on the last occasion the workers were admitted into the block of units by another occupant. The workers knocked on the door of the mother’s unit but there was no answer. They left a note in the letter box with their details.
On 3 June 2015 the FACS workers made a home visit with the father to the home of the paternal grandparents.
On 4 June 2015 Ms T (a FACS worker) received a text message from the mother to the effect that the FACS workers could visit at 9.30 am the next morning.
FACS workers attended at the mother’s unit on 5 June 2015. They observed that the condition of the apartment had deteriorated since the visit on 2 April 2015. They observed that there were fruit flies in the apartment, all surfaces were covered in clutter, there was rubbish covering the majority of the floor in the living room and there appeared to be no bed for B. The workers were concerned about the mother’s mental state because she insisted on seeing and photographing the workers’ identification, despite having met Ms T on a previous occasion and she refused to speak with the workers, except to say that any questions for her needed to be put in writing.
On 5 June 2015 FACS assumed care of B and placed him with his father. Earlier that day Ms T rang B’s school principal to advise that FACS would be assuming care of him at school that afternoon. The workers attended at the school that afternoon and spoke to B and provided the assumption papers and confirmation of placement letter to the principal. They told B that he would be in his father’s care for the next little while. The father arrived at the school and collected the boy.
From 5 June 2015 B has lived with his father.
From June 2015 FACS has not been able to successfully engage with the mother.
On 12 June 2015 FACS filed an Application in a Case and sought that it be listed on short notice. The application was listed on 18 June 2015 on the basis that it was to be served by 1.00 pm on 16 June 2015. Attempts were made to serve the mother and to contact her but they were unsuccessful. A process server engaged by FACS attended at the entrance to the mother’s block of units at several different times on 16 June 2015 but there was no response from the intercom for the mother’s unit[4]. The letter box for the mother’s unit was observed to hold a large protruding envelope and a neighbour advised that the letter box was often not cleared, overflowed and the neighbour often picked up the mail and put it outside the mother’s door.
[4] Affidavit of Ms W sworn and filed 12 June 2015
In late 2015 the father moved B to Suburb JJ Public School, being a school closer to the father’s home.
An order was made appointing Dr H as the single expert forensic psychiatrist in the proceedings. The mother refused to attend on him for the first appointment in 2015 but after FACS provided the mother with a voucher for a taxi, she attended an appointment with Dr H and B in April 2016.
On 20 May 2016 B’s school principal advised FACS that he had improved significantly since term 4 of 2015 and that there had been no major complaints from teachers and no concerns had been raised in relation to B’s presentation and attendance at school.
Apart from the interview with Dr H, FACS reported that the mother did not spend any time with B after 5 June 2015.
On 22 June 2016, FACS withdrew from the proceedings.
In 2017 the father changed jobs, moving to work for another institution.
On 10 April 2017 the following orders were made:
1.The mother vacate and remove her personal possessions from the former matrimonial home at M Street, Suburb G in the State of New South Wales within seven days from this date.
2.That as soon as practicable after complying with order 1 and in any event by 29 April 2017, the mother deliver to N at K Pty Ltd (the agents) all keys in her possession for the Suburb G property.
3.The parties shall forthwith do all things and sign all documents necessary to cause the Suburb G property to be listed for sale with the agents or with such other real estate agency as they may agree upon in writing for sale by public auction at a reserve price agreed between the parties in writing or in default of agreement, as recommended by the agents.
4.The parties shall each cooperate in every way with the agents and without limiting the generality of that, by
(a)making the keys available to the agents;
(b)allowing inspection of the former matrimonial home at all reasonable times requested by the agent;
(c)doing or saying nothing to hinder or prevent the sale being effected;
(d)ensuring the former matrimonial home including the grounds are in a neat and clean condition at the time of inspection by the agents and prospective purchasers to the extent that is relevant; and
(e)signing all documents requested by the agents in relation to the listing for sale except a contract or agreement that is not authorised by the solicitor acting on the sale.
5.Condon Legal (the solicitors) shall act on the sale of the Suburb G unit on behalf of the parties.
6.The Court notes that the husband’s solicitor has indicated that he will act on the sale of the property for a fee of $1,250 plus disbursements.
7.The solicitors shall do all things as required to transfer the property to the purchasers name, obtain the parties signatures on the contract and the transfer, and noting that that will be facilitated through the agents.
8.Neither of the parties may confer on a real estate agent, other than the agents, any right to act on the sale of the Suburb G property, without the written agreement of the other party or an order of the Court.
9.In the event the property does attain the reserve price at the auction commissioned by the parties and the parties cannot agree on a lesser sale price they are to withdraw the property from sale for a period agreed by the parties or in default of agreement as recommended by the agents and then they shall again list the property for sale by way of public auction at a reserve price recommended by the agents.
10.Upon settlement of the sale of the Suburb G property the sale proceeds shall be disbursed as follows:
(a)in payment of the agents’ commission and advertising expenses;
(b)in the discharge of the mortgage to the V Bank;
(c)in payment of any and all adjustments required by law to effect the transfer to the new purchaser;
(d)in payment of the legal fees and disbursements of the solicitors acting on the sale;
(e)in payment of the balance of the net proceeds into the Condon Legal Law Practice Trust Account and then within 10 days into a Commonwealth Bank term deposit account on behalf of the parties, styled “Condon Legal Law Practice Trust Account Controlled Monies Account no. 1 in trust for Mr Atwood and Ms Atwood” to abide further order of the Court or disbursement in accordance with the written agreement of the parties.
11.In the event that either party refuses or neglects to execute any deed, document, instrument or writing necessary to give effect to these Orders, a Registrar of the Sydney Registry of the Court is appointed pursuant to s 106A of the Act to execute such deed, document, instrument or writing in the name of that party and to do all acts and things necessary to give validity and operation to the deed, document, instrument or writing upon the Registrar being provided with affidavit evidence of such refusal or failure for at least seven days after service of the document at the party’s address for service.
12.The mother’s Application in a Case filed 17 January 2017 is dismissed.
13.In relation to the substantive proceedings, a Family Report shall be prepared to address the matters set out in s 60CC of the Act, noting that there are two earlier reports from Dr H and that the Court is particularly concerned that there be an opportunity for B to speak to the report writer prior to the final trial.
14.The parties shall attend on the family consultant assigned to prepare the Family Report at dates, times and places requested by the Family Consultant and shall also facilitate the attendance of the child.
15.The proceedings shall be restored to the list on the application of the Independent Children’s Lawyer not later than two weeks after the release of the family report.
16.The Court requests that the Independent Children’s Lawyer restore the proceedings to the list for the allocation of trial dates at a time convenient to the parties and to the Court, once interview dates are fixed for the family report.
The Parenting Proceedings
The Expert Evidence
The single expert forensic psychiatrist was Dr H. His qualifications include the following degrees:
·MBBS awarded with honours in 1984;
·Fellowship Royal Australian and New Zealand College of Psychiatrists (FRANZCP) in 1992; and
·Certificate of child psychiatry, RANZCP awarded in 1993.
Dr H’s work experience includes:
·First Year Fellow in Child Psychiatry at Hospital 1 in 1991;
·Second Year Fellow in Child Psychiatry at Hospital 2 in 1992;
·Visiting Medical Officer, Child and Adolescent Psychiatrist at Health Service 1 from 1993 to 1997;
·Staff Specialist Child and Family Psychiatrist at Health Service 2 from 1993 to 1999;
·Visiting Medical Officer, Child and Adolescent Psychiatrist at Health Service 2 from 1999 to 2002;
·Visiting Medical Officer, Child and Adolescent Psychiatrist, Health Service 3 from 2000 to 2003 and 2007 to 2008;
·Child, Family and Adult Psychiatrist in private practice from 1993 to current;
·Tutor for psychiatry registrars, Supervisor and Lecturer for Fellows in Child Psychiatry, Health Service 4 from 2002 to current; and
·Facilitator and Course Contributor at Health Service 5 from 2008 to current.
Dr H prepared a report in this matter dated 6 November 2015. He provided a supplementary report dated 5 April 2016.
The single expert family consultant was Mr Q. His qualifications include the following degrees:
·Master of Social Work in 2008;
·Certificate of Supervision in Field Education in 1995; and
·Bachelor of Social Work in 1994.
Mr Q’s work experience includes the following:
·Family consultant at the Family Court of Australia and the Federal Circuit Court of Australia from October 2014 to present;
·Senior Social Worker and Counsellor at the General and Domestic Violence Counselling Service at Hospital 4 from 2006 to 2014;
·Acting Coordinator of the General and Domestic Violence Counselling Service at Hospital 4 from March to June 2013;
·University tutoring in 2011;
·Senior Social worker at the HIV Community Team at Hospital 4 from 2002 to 2006;
·Social Work Department Student Unit Coordinator and Student Educator from 1999 to 2001;
·Social Worker in the HIV Medicine Unit at Hospital 4 from 1996 to 2002;
·Social Worker at a Youth Service Specialist Unit from 1995 to 1996;
·Social Worker at a Community Disability Support Team from 1995 to 1996.
Mr Q interviewed the family in October and November 2017 and February 2018. He prepared a report in this matter dated 15 November 2017 and an addendum on 6 March 2018.
The Legislation
The law to be applied in parenting proceedings is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA provides that parenting proceedings are determined on the basis that the best interests of the child are the paramount consideration. Section 60CC identifies the matters that are relevant to the determination of what is in a child’s best interests. Section 60CC(1) requires the Court to consider the “primary considerations” and “additional considerations” articulated in ss 60CC(2) and 60CC(3) respectively.
The sequence of decision making for identifying appropriate parenting orders under Part VII starts with parental responsibility. Section 61DA of the Act creates a presumption in favour of equal shared parental responsibility. The presumption may not apply but if it does apply, it can be rebutted. If an order will be made for equal shared parental responsibility, s 65DAA requires that the court consider making an order for equal time and if that is not ordered, for each party to have substantial and significant time. Findings are made by reference to what is in the child’s best interests.
For the purposes of the determination of these proceedings, I will adopt the following approach:
a.set out the current arrangements;
b.set out the proposals, including any options not advanced by a party that the parties addressed or could have addressed;
c.where possible and relevant, consider and make findings about matters set out in s 60CC;
d.consider and make findings about parental responsibility, including considering the presumption in s 61DA;
e.apply s 65DAA if relevant and assess the proposals in light of that provision;
f.if 65DAA is not relevant, assess the proposals against the best interests criterion;
g.consider and make findings about living arrangements; and
h.make orders.
The Current Parenting Arrangements
Since 5 June 2015 B has lived with his father and save for one interview with Dr H, he has spent no time with his mother since then.
The Parties’ Proposals
The father proposes that he have sole parental responsibility for B, that B live with him and spend no time with the mother.
The mother proposed that parental responsibility including decisions about where he lives, be left to B. Importantly the mother sought no orders in respect of her having parental responsibility for B, for B to live with or spend time with her or that he communicate with her.
The ICL proposes similar orders to those sought by the father.
There is only one, viable parenting proposal.
Section 60CC Considerations
The section specifies the following considerations:
Primary considerations:
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2)(a) the benefit to the child of having a meaningful relationship with both of the child‘s parents
122.A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.[5] That enquiry is “prospective” which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
[5] McCall & Clark (2009) FLC 93-405.
123.The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. The expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’.[6]
[6] Champness & Hanson (2009) FLC 93-407.
124.Parents are usually important to children and provided it is safe and practicable, the relationships between children and parents should be promoted. It is likely that the mother has been B’s primary care giver, at least for significant periods of his life, until June 2015. The father too played an important role during the parents’ cohabitation and since June 2015 he has been left with the main parenting task. I have no doubt that the relationships between B and each of his parents are meaningful and that if it is otherwise in his best interests, any orders made should promote those relationships.
(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
125.‘Abuse’ and ‘family violence’ are defined terms.
“abuse” , in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
126.Section 4AB provides:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member‘s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child‘s family towards another member of the child‘s family; or
(b) seeing or hearing an assault of a member of the child‘s family by another member of the child‘s family; or
(c) comforting or providing assistance to a member of the child‘s family who has been assaulted by another member of the child‘s family; or
(d) cleaning up a site after a member of the child‘s family has intentionally damaged property of another member of the child‘s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child‘s family by another member of the child‘s family.
127.Section 60CC(2A) deals with the weight to be given as between the primary considerations:
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
128.B was neglected in the mother’s care. On her own case, he was living in squalor in the Suburb G unit. When tendering documents from the unit in these proceedings the mother warned that some of them were affected by damp and cockroach faeces. There was no hot water in the unit. B presented at school unwashed and inadequately dressed. Ultimately after a number of risk of harm reports, B was removed from the mother’s care by FACS.
129.There was family violence in that the mother kept B from the father (s 4AB(2)(i)).
130.Notwithstanding concerns raised by Dr H there is no evidence that the mother has done anything to address issues with her mental health. Even within the formal environment of the Court room the mother acted badly. On one occasion, when she was not permitted to tender a significant quantity of mail the mother threw those documents towards the father behind those seated at the bar table.
There was reference in the mother’s Financial Statement to the mother owing a debt of $150. That matter was raised with her during submissions and she said that the description in the Financial Statement was incorrect. I will exclude that debt.
It was the mother’s evidence that she owes Y Bank $1,300. She provided no documentary evidence of the current balance of the debt. A document[9] entitled ‘Loan Contract Schedule’ from 2015 shows a balance of over $7,000. The mother contends that she was advised to pay down the debt but not to pay it off. The mother said that she had a document at home, bearing the stamp of the credit union, showing the balance at $1,300. No harm is done to the father by accepting the mother’s evidence about the lower balance.
[9] Exhibit 34
Doing the best I can, the property pool is made up of the following:
Assets
Owner Description Value 1 Joint CBA account …90 No. …61 @ 1 August 2018 301,074.03 2 F CBA account No. …48 635.57 3 F CBA account No. …27 807.37 4 F 2001 motor vehicle 1,000.00 5 F Super Fund 1 $201,000.00 6 M Super Fund 2 estimated $30,000.00 7 M Debt to ATO -$66,000.00 8 M Y Bank -$1,300.00 Total $467,216.97
Net assets
The assets have a net value of $467,216.97 of which $231,000 is in the form of superannuation interests and the balance is in non superannuation assets.
Contributions
The obligations placed on the Court by s 79 of the Act call for an assessment of the respective contributions by and on behalf of the father and mother. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets.[10] There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the father and mother in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of father and mother.
[10]In the Marriage of Shewring (1988) FLC 91-926.
As to whether the Court should apply the considerations in s 79(4) of the Act to the assets globally or asset by asset, the authorities have it the former approach is preferred, however, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) FLC 91-814; In the Marriage of Norbis (1986) 161 CLR 513; In the Marriage of Zyk (1995) FLC 92-644.
In In the Marriage of Coghlan (2005) FLC 93-220 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggested at [61] that:
… This approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.
There is a dispute between the parties as to the way in which any property settlement orders should be expressed. The father seeks that any property settlement in favour of the mother be expressed in the form of a superannuation splitting order. In other words, if the mother was to receive an amount by way of property settlement by reference to the application of s 79(4) of the Act to non-superannuation assets, the father sought that that settlement be given effect by a splitting order in respect of the father’s superannuation.
The mother opposed that approach and said something to the effect that she sought “cash for cash and super for super”. By that I understood that the mother sought that the appropriate settlement identified by reference to the application of s 79(4) to non-superannuation assets be adjusted by a payment of those assets and that the appropriate settlement identified in respect off their superannuation assets be adjusted by a splitting order in respect of the father’s superannuation interests. By that I understood that the mother sought a two pools approach whereby a calculation would be made about the contributions and any adjustments relevant to the non-superannuation assets, resulting in a division from those assets and that similarly, s 79(4) would be applied to the parties’ superannuation and that would result in a settlement expressed as a splitting order out of the father’s fund.
The proceedings involve a modest property pool but I will apply s 79 on a two pools basis. That would lead to a result consistent with that which I foreshadowed on 13 August 2018, whereby the ultimate property settlement will be expressed in both an adjustment of the non-superannuation assets and in a splitting order in respect of the father’s superannuation interests. The parties will both have a need for cash funds. It would seem unfair to express most of the mother’s property settlement in the terms of a splitting order, as the father proposes.
Contributions to Superannuation
Section 79(4)(a) Contributions
Financial contributions to superannuation, both direct and indirect were made by each of the father and mother. Each of the parties had paid employment for periods during the marriage and contributions were made to superannuation by the employers.
The parties brought superannuation entitlements into the marriage. The father’s superannuation contributions overall were significantly more valuable than those of the mother as the father was more consistently employed than was the mother.
The father’s financial contributions probably exceeded those made by the mother.
Section 79(4)(b) Contributions
This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions.
There is no evidence of contributions of this type.
Section 79(4)(c) Contributions
This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
The parties’ arrangement had the mother take more time out of her career to care for B, than the father. B remained with the mother after separation. It follows that she was the main carer for him. Beyond the division of time between the parents there is a substantial dispute about the extent and quality of the contributions made by the parties as parents and homemakers.
Each of the parties made contributions to the family. The parents were married in 2002. B was born in 2006. The parents separated on a final basis in March 2014. The mother alone cared for B until June 2015 and since then the father has cared for B without any assistance from the mother. First, the mother had 15 months with sole care of B and then, albeit he was assisted by his parents, the father was in the position of sole parent for more than four years.
It is likely that during the marriage the mother made the greater contribution as parent and homemaker. Each of the parties blames the other for inadequately discharging the responsibilities of parent and homemaker during that period. Given the problems that the mother had after separation and the fact that she was not effective in presenting her own case or challenging that of the father during the trial, the available finding is that, at least some of the parenting and homemaker problems during cohabitation that each of the parties have identified were caused by the mother. Since separation, each of the parties in turn were solely responsible for caring for B.
Conclusion on Contribution
The submissions on behalf of the father were to the effect that his contributions greatly exceeded those of the mother. The father’s submissions were made on a global basis but the logic of the relief sought by the father is that after some reimbursement, the ultimate division should be 80% to the father and 20% to the mother. I was told that those calculations were made on the basis of contributions alone with no adjustment for s 75(2) considerations.
This was a marriage where cohabitation spanned about 11 and a half years (October 2002 to March 2014). Of course contributions continued thereafter, particularly in respect of B. As to B, he lived with his mother, to the exclusion of the father until June 2015 and since then, he has been in the sole care of his father. On balance I assess the contributions of the parties to superannuation to favour the husband in the proportions 65 per cent compared to 35 per cent by the mother.
Contributions to Non-Superannuation Assets
Section 79(4)(a) Contributions
Financial contributions to property, both direct and indirect were made by each of the father and mother. Each of the parties had paid employment for periods during the marriage. It is the unchallenged evidence of the father that his income rose from about $50,000 per annum at the start of the marriage to about $55,000 per annum at separation. On the other hand he contends that the mother entered the marriage earing about $35,000 per annum and at separation she was earning about $15,000 to $20,000 per annum from casual work. The assessment of contributions is not simply a matter of adding up the dollars. Here the father’s contributions by way of wages was greater because he had more time in the paid workforce during the marriage and his employment was full-time compared to some part-time or casual employment by the mother.
The father brought Commonwealth Bank shares into the marriage and they were sold for $35,000 which in turn contributed to the deposit and purchase costs for the Suburb G unit. The unit was purchased in 2005 for $305,000. The parties borrowed $289,000 which was secured by way of mortgage. Otherwise, the parties did not have any significant non-superannuation assets at the commencement of the marriage. The father had more consistent paid employment than the mother.
The mother suggested that the father diverted funds from the purposes of the marriage but she was not successful in making that case. The mother put into evidence two documents said to establish the waste of matrimonial funds by the father on gambling. The documents are a betting slip dated 27 July 2013 for a $5 each way bet on a horse race and a publication dated 13 July 2013 titled “Best Bets” providing betting information for races at six named race courses over a period. Suffice it to say, those documents do not establish that the father wasted matrimonial funds.
The father too suggested that the mother diverted funds from the purposes of the marriage. He contends that the mother did not account to him for the use of her income. Findings of waste or that funds were diverted, are not available on that evidence.
A loan was taken out in 2013 for $74,100 to consolidate various debts. The balance of that loan stood at about $57,000 at separation. The father continued to service that loan and it was finally discharged on 16 January 2018.
As to the mortgage on the Suburb G unit, the father contends that the mortgage balance increased from the date of separation from $293,774.61 to $336,914.08 which was the discharge amount on sale in late 2017.
The father points out that the mother had the benefit of the occupation of the Suburb G unit from separation but did not meet the outgoings on the property while he was left to live with his parents and took responsibility for the consolidated personal loan.
As a general proposition, it would be expected that a party who had the benefit of a significant asset after separation, would meet the outgoings on that asset. However, there is no evidence to suggest that the mother had the financial capacity to pay those outgoings. The parties were never high income earners and on any view, they struggled to make ends meet during the marriage and since. The mother has produced documents evidencing intercessions on her behalf with her creditors by financial counsellors from FF Financial Counselling. There is reference in the mother’s case to action threatened against the parents under the Bankruptcy Act 1966 (Cth). A tax debt of the mother was placed in the hands of debt collectors. A Bankruptcy Notice issued to the mother based on a strata debt for the unit and there is reference to the possibility of the father entering into a debt agreement under Part IX of that Act. The father was able to access some of his superannuation on the basis of financial hardship. For the first 15 months after separation, albeit though her own conduct, the mother had no respite from her parenting responsibilities for B. It is likely that the mother’s mental health deteriorated in the period leading to and following the parents’ separation. Those factors would not have assisted in her securing paid employment.
The father’s financial contributions probably exceeded those made by the mother.
Section 79(4)(b) Contributions
This provision deals with direct and indirect non-financial contributions other than those made in the form of parent and homemaker contributions. It is the unchallenged evidence of the father that he brought into the marriage, personalty including a large collection of model trains and model train sets. He says that the mother had a stereo, a bed, a side table and other furniture. Without reliable evidence of value and of the fate of those items, these contributions will not weigh heavily in the overall calculations.
Otherwise there is no evidence of contributions of this type.
Section 79(4)(c) Contributions
This provision deals with contributions to the family including contributions in the form of homemaker contributions and contributions to children of the marriage.
I refer to the findings about contributions to the family in the context of the superannuation pool. Those findings apply equally in respect of the non-superannuation pool.
Conclusion on Contribution
There are many allegations made in these proceedings and it is difficult to be confident about the factual background. On the broad facts I assess the contributions of the parties to favour the father by a small margin. During the marriage the father made the greater financial contributions and they were balanced by the mother having the greater parenting load. After separation however, the mother had the use of the unit while the father had the parenting responsibilities for a longer period than the mother and he continued to make some financial contribution whereas the mother could not. I find that the father contributed 52.5 per cent compared to 47.5 per cent by the mother.
The other matters in Section 79
Once contributions have been assessed, the other factors in s 79(4) need to be considered. They are:
Section 79(4)(d)
Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the father and mother. There is no evidence to suggest that either of the parties intends to apply their property settlement to retraining. It is the mother’s evidence that she might want to start a business, with a partner and that it would require her to contribute $342,400. If the mother is not in paid employment, her need for funds both to draw on directly and to provide income by way of interest is likely to be at least as great as that of the father, if not greater.
Section 79(4)(e) - Section 75(2) factors
Pursuant to s 79(4) I am required to consider the matters referred to in ss 75(2) so far as they are relevant.
The relevant matters in s 75(2) would seem to be paragraphs (a), (b), (c), and (f).
(a) the age and state of health of each of the husband and wife;
The mother is 49 years of age and as is referred to earlier in these reasons, has compromised mental health. One of the aspects of poor mental health is that the illness can prevent the sufferer from accepting the problem and engaging in appropriate treatment. The mother contends that she suffers for all but 4 days of each menstrual cycle and that due to nasal problems she can only sleep for 4 hours at a time. The mother has not provided any medical evidence supporting those contentions, nor information from a doctor about any treatment she has been given for those or any health conditions.
The father is 46 years of age and is in good health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The mother’s income is $530 per week made up of a Centrelink benefit. The mother has not deposed about there being other income earners in her household.
At one point in the mother’s Financial Statement she says that she spends $805 per week made up of $405 in rent, $150 in loan repayments, $50 in child support and $200 in living expenses. However in Part N her living expenses are said to be $295 per week. The latter figure is made up of the following estimates: $70 for food, $40 for household supplies, $25 for electricity, $15 for telephone, $25 for fares and parking, $40 for clothing and shoes, $20 for medical dental and optical expenses, $40 for entertainment and hobbies and $20 for hairdressing and toiletries.
The evidence about the mother’s assets and liabilities is set out earlier in these reasons.
It was not suggested that the mother currently has unexercised earning capacity.
The father’s income is $1,330 per week made up of $1,100 per week in wages, Family Allowance at $205 and child support from the mother at $24.50 per week. As with the mother, the father has not given evidence about the income of other occupants of his household. I apprehend that he lives with his parents. There is no evidence about their income. It is not clear why the mother is paying $50 in child support while the father receives less than half that.
The father spends $1,600 per week made up of $220 in income tax, $250 in board to his parents, $90 in motor vehicle insurance and health insurance, $25 in registration for a 2001 motor vehicle and $1,015 in living expenses. The living expenses include $300 on food, $40 on electricity, $50 on telephone, $40 on petrol, $55 on motor vehicle maintenance, $85 on fares and parking, $45 on clothing and shoes, $125 on activities for B, $80 on medical, dental and optical expenses, $60 on entertainment and hobbies, $80 on education expenses (presumably for B), $25 on chemist and pharmaceuticals and $30 on hairdressing and toiletries.
The evidence about the father’s assets and liabilities is addressed above.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The father has and will continue to have the sole care of B.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
I have set out above, what there is of the evidence in relation to the parties’ expenses.
(f) Subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
I have referred to the parties’ respective Centrelink benefits and superannuation interests.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
The background facts suggest that the parties had a modest standard of living during the marriage and the more recent evidence does not change that position. Of course, each of the parties has a need for adequate finances to provide a dignified standard of living. The problem is that their assets are of modest value.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
This is not relevant.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
I have accepted the mother’s concession about her tax debt and any property settlement received by her could be applied to meet that liability.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
As is usually the case, where one party takes time out of a working career to care for a child, that is of benefit to the other parent who is able to continue in paid employment. Here the mother took time off to care for B when he was young. It is not clear whether that fact or the mother’s mental health had the greater impact on her earning capacity.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
There is no evidence relevant to this factor.
(l) the need to protect a party who wishes to continue that party’s role as a parent;
This is not relevant.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
I have set out above what there is of that evidence.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
Nothing comes to attention here.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
I have referred to the child support position.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
It is likely that the mother threw away items of personalty belonging to the father and others, being items left in the Suburb G unit at separation. There is reference in the evidence to B saying something to the effect that he was upset that his mother threw away possessions belonging to his father. That represented perverse and vexatious conduct by the mother.
As is referred to above, the mother made submissions about commencing a business with a partner. There is no evidence about this issue, about the nature of the business nor the details of the partner. The mother submitted that if her health enables her to commence a business she would need $342,400 for start up costs, exclusive of insurance costs. The submission begs more questions than it answers. For example, there is no reference to the contribution to those costs by the mother’s business partner.
Otherwise, nothing comes to attention here.
(p) the terms of any financial agreement that is binding on the parties.
There was no agreement.
Section 79(4)(f)
Beyond the proposed parenting orders referred to above, there are no relevant orders made under the Act.
Section 79(4)(g)
I have referred to the child support position.
Conclusion
The submission on behalf of the father is that there should be no adjustment from the outcome based on his contentions about contributions.
I gather that the mother would argue for an adjustment in her favour to the outcome warranted by contributions alone. The mother submitted that she is 49 years of age, that her health is poor and she lives in public housing and on Centrelink benefits.
The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
·the mother is slightly older than the father and she has significantly compromised health.
·although the father is on an average income, the mother’s financial circumstances are significantly worse than those of the father. The father has permanent full-time employment, he lives with his parents and has the benefit of sharing accommodation costs with them and their assistance with B.
·B will live with the father for the foreseeable future and the father will have no respite in his care of the boy from the mother. B is 13 years of age and therefore has about five years during which he will require support and supervision.
·the outcome based on contributions alone will favour the father, particularly in respect of the superannuation pool.
In my view those matters will have some countervailing effect but an adjustment is still warranted in favour of the mother. Whereas the impost of B’s care on the father will be intense and significant, the mother’s poor mental health is likely to have devastating and life-long effects on her. In my view there should be adjustment in her favour for each pool, from the outcome warranted by contributions alone, of five per cent. Five per cent of the entire property pool of the parties represents about $23,360 and an adjustment of that amount would create a difference between the parties of about twice that sum.
After that adjustment the settlement for the non-superannuation pool will be as to 52.5 per cent to the mother and 47.5 per cent to the father and for the superannuation pool it will be 40 per cent to the mother and 60 per cent to the father.
Just and Equitable
The assets have a net value of $467,216.97 of which $231,000 is in the form of superannuation interests and $236,216.97 is in non-superannuation assets. I assume that latter figure will have increased with interest on the balance of the controlled moneys account since the hearing.
Prior to the division of the controlled moneys account, the father seeks that there be certain adjustments. He seeks that the mother be responsible for certain costs associated with accessing the Suburb G unit and cleaning it prior to sale. He seeks that the mother reimburse him in the sum of $2,680.00 for outgoings paid by him in relation to the sale of the former matrimonial home situate at M Street Suburb G being:
i.$640 paid to have the locks changed and to gain access to the unit
ii.$440 paid for rubbish truck and rubbish removal
iii.$1,600 paid for cleaning and clean up of unit
As to the cost of having the locks changed, the mother was ordered to deliver the keys to the unit, to the selling agent. That was apparently not done. The mother should bear the cost of changing the locks.
As to the cleaning costs, it is the mother’s evidence that the unit was in squalid conditions when the father lived there. Neither party resiled from their evidence about the condition of the unit. It is not possible to single out one party as responsible for that. The cost of the cleaning should be shared. The father has already met the costs and therefore he should be reimbursed from the controlled moneys account.
In order to account for any interest paid on the funds in the controlled moneys account, I will calculate what should be paid to the father and then express the outcome in terms of a percentage division of the controlled moneys account.
The non-superannuation assets are:
Assets
Owner Description Value 1 Joint CBA account …90 No. …61 @ 1 August 2018 (“the controlled moneys account”) 301,074.03 2 F CBA account No. …. 48 635.57 3 F CBA account No. …. 27 807.37 4 F 2001 motor vehicle 1,000.00 5 M Debt to ATO -$66,000.00 6 M Y Bank -$1,300.00 Total $236,216.97
The father will retain the first $2,040 from the controlled moneys account and then should receive 47.5 per cent of the balance of the non-superannuation assets plus $640. $236,216.97 - $2,040 = $234,176.97. $234,176.97 * 47.5% = $111,234. $111,234 + $640 = $111,874. The father should receive $2,040 + $111,874 which amounts to $113,914.
Of the non-superannuation assets the father already has:
Owner Description Value 1 F CBA account No. …. 48 635.57 2 F CBA account No. …. 27 807.37 3 F 2001 motor vehicle 1,000.00 Total 2,442.94
In order to be reimbursed for cleaning costs of $2,040, to have the mother pay for new keys for the unit and to receive 47.5 per cent of the balance, the father should keep his accounts and motor vehicle and receive $111,471.06 ($113,914 - $2,442.94) from the controlled moneys account. $111,471.06 is about 36.9 per cent of the controlled moneys account. I will order that the balance of the account be divided in the proportions 36.9 per cent to the father and the balance to the mother.
The mother will remain responsible for:
Owner Description Value 1 M Debt to ATO -$66,000.00 2 M Y Bank -$1,300.00 Total ($67,300.00)
In addition she will receive the balance of the controlled moneys account. The effect of that calculation is that the mother will share the cleaning costs paid by the father, she will be solely responsible for cutting new keys for the unit and will receive the balance of the controlled moneys account.
The operative orders will provide for the parties to retain what they have and to continue to be responsible for what they each owe and that they cause the controlled moneys account to be disbursed as to 36.9 per cent of the balance to the father and the remainder to the mother.
As to the superannuation pool, it is represented by:
Owner Description Value 1 F Super Fund 1 $201,000.00 2 M Super Fund 2 estimated $30,000.00 Total $231,000.00
In order to settle the superannuation in the proportions 60 per cent to the father and 40 per cent to the mother, the mother will retain her superannuation and there will be a splitting order in her favour from the father’s interest. Forty per cent of the parties’ superannuation is $92,400. The mother has $30,000 in her fund. I will made a splitting order in favour of the mother, using the form of order approved by the trustee of Super Fund 1, but with a base amount of $62,400.
Conclusion under Section 79
This was a marriage that spanned 12 years and significant contributions were made by each of the parties. They acquired some assets and provided for their family. The parties shared the work of the marriage but overall the contributions of the father were marginally greater than those of the mother. A five per cent adjustment is required because of the matters identified in s 79(4)(d), (e), (f) and (g). In my view an outcome achieved by the orders set out above would be just and equitable.
Costs
The father seeks that the mother pay the costs of the proceedings. Written submissions were submitted by the father’s solicitor at the end of the mother’s oral submission on 16 November 2018. The mother had no meaningful opportunity to address those submissions on that day. I invited the mother to lodge and provide to the other parties any written submission in response, within 28 days. The mother’s written submissions were received on 14 December 2018 but they did not specifically address the question of the costs of the proceedings.
I will assume that the mother opposes any order for costs being made against her.
Costs applications are decided by reference to s 117 of the Act. Section 117 relevantly provides:
Costs
(1) Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
…
The Family Law Rules 2004 address the quantification of costs at r 19.18 as follows:
19.18 Method of calculation of costs
(1)The court may order that a party is entitled to costs:
(a)of a specific amount;
(b)as assessed on a particular basis (eg lawyer and client, party/party or indemnity);
(c)to be calculated in accordance with the method stated in the order; or
(d)for part of the case, or part of an amount, assessed in accordance with Schedule 3.
Example: For paragraph (1)(c), the stated method may be in accordance with Schedule 3 but with an additional percentage for complexity.
(2)If costs are payable under the Act or these Rules, or the court orders that costs be paid and does not specify the method for their calculation, the costs are to be assessed on a party/party basis.
(3)In making an order under subrule (1), the court may consider:
(a)the importance, complexity or difficulty of the issues;
(b)the reasonableness of each party’s behaviour in the case;
(c)the rates ordinarily payable to lawyers in comparable cases;
(d)whether a lawyer’s conduct has been improper or unreasonable;
(e)the time properly spent on the case, or in complying with pre‑action procedures; and
(f)expenses properly paid or payable.
As at 28 August 2018 the father’s costs were $390,000[11]. There is an estimate of $8,000 for future costs. I do not have an account in taxable form at scale.
[11] The father’s Costs Notice dated 28 August 2018 – Exhibit 41.
Dealing with the relevant matters referred to in s 117 (2A) of the Act:
The financial circumstances of the parties
I refer to the findings made earlier in these reasons.
The father’s income is significantly greater than that of the mother.
The father is in better financial circumstances than the mother.
The conduct of the parties to the proceedings
Section 117 (2A)(c) does not address conduct at large but the conduct of the parties in the course of prosecuting the proceedings. This is an important element of the father’s claim. There is no doubt that the mother’s conduct added to the costs of the proceedings. The mother could not provide a reliable address for service, was unable to attend or to remain at Court on many occasions and could not properly support her case by engaging with the father’s evidence or providing evidence in support of her own case. The parties were involved in 57 Court events over more than four years. Eight of the events involved a Family Consultant and 49 were in court. This was a case that commenced with the only parenting proceedings being the father seeking to spend some time with his son. They concluded with no workable proposal from the mother and the father’s application that B live with him and spend no time with the mother. As to property settlement there was a very modest property pool but there was great difficulty in having the Suburb G unit sold and securing vacant possession. On any view these proceedings should have been resolved shortly after they were commenced and several years ago, with little or no legal costs.
To the considerable extent that the mother’s conduct was probably affected by her health, she cannot be blamed for the costs thrown away. By same token, however, neither should the father carry those costs alone.
Failure to comply with Court orders
Although there was substantial non-compliance by the mother, it cannot be said that the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court.
A party was wholly unsuccessful
It cannot be said that either parent was wholly unsuccessful in the proceedings.
Settlement discussions in writing
I do not recall any evidence of written offers of settlement.
Other matters
The mother did not have legal representation. It is highly likely that that fact added to the father’s costs of the proceedings.
The burden of legal costs fell on the father, alone. That left the father to fund most of the preparatory work and to establish matters that should have been resolved by agreement between the parties. Albeit that she would not see it in these terms, the mother had the benefit of the legal representation funded solely by the father.
The poor relationship between the parents and the mother’s poor health would have had an influence on the proceedings even if both of them were legally represented. Nevertheless, it is outrageous that the father’s costs reached the level they have in proceedings about a modest pool of assets and what were ultimately, undefended parenting proceedings.
Again, there is little doubt that the mother’s mental health impacted on the proceedings. There is no reason why the father alone should carry the burden of costs exacerbated by that fact.
Should an order be made?
The father is in a stronger financial position than the mother but the mother’s conduct of the proceedings increased the costs and the father bore the burden of all of the legal costs paid by the parents. The mother should meet one half of the father’s costs. They will be agreed or assessed on a party and party basis. Because the father’s costs obligation is not limited to party and party costs, the impost on him is likely to be greater than on the mother.
Conclusion
In my view the mother should pay one half of the father’s costs as agreed or assessed.
I will provide for the mother to pay the costs on agreement or assessment and that she not have access to her share of the controlled moneys account until those costs are paid.
I certify that the preceding three hundred and twenty-one (321) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 20 September 2019.
Associate:
Date: 20 September 2019
Key Legal Topics
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Family Law
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Costs
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