AXELL & McKNIGHT
[2018] FCCA 953
•19 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AXELL & McKNIGHT | [2021] FCCA 953 |
| Catchwords: FAMILY LAW – Property – husband having greater earning capacity – wife having greater amount of child care – husband contributing two inheritances to mortgage. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 90SF(3), 90SM(3), 90SM(4) |
| Cases cited: Bevan v Bevan (2013) 279 FLR 1; (2013) 49 FamLR 387; [2013] FamCAFC 116 |
| Applicant: | MS AXELL |
| Respondent: | MR McKNIGHT |
| File Number: | MLC 5984 of 2016 |
| Judgment of: | Judge Riley |
| Hearing dates: | 5, 6 and 7 March 2018 |
| Date of last submission: | 7 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 19 April 2018 |
REPRESENTATION
| Counsel for the applicant: | Ms Brennan |
| Solicitors for the applicant: | Peter Lynch |
| Counsel for the respondent: | Mr Barbayannis |
| Solicitors for the respondent: | Tisher Liner FC Law |
| Counsel for the independent children’s lawyer: | Ms Goldsworthy |
| Solicitors for the independent children’s lawyer: | Victoria Legal Aid |
ORDER BY CONSENT
The mother and father have equal shared parental responsibility for [X] born on (omitted) 2004 (“[X]”), [Y] born on (omitted) 2006 (“[Y]”) and [Z] born on (omitted) 2008 (“[Z]”).
ORDERS BY THE COURT
[X], [Y] and [Z] live with their mother.
[X], [Y] and [Z] spend time and communicate with their father as follows:
(a)in each alternate week during school terms, from the conclusion of school on Friday (or 3:30pm if Friday is not a school day) until the commencement of school the following Wednesday (or 9am if Wednesday is not a school day);
(b)during the term 1, 2 and 3 school term holidays the time [X], [Y] and [Z] spend with their father in the alternate weeks referred to in the preceding paragraph be extended to conclude at 6pm on Friday and the usual regime continue in the same cycle following [X], [Y] and [Z] spending one week with their mother; and
(c)on a week about basis during the summer school holidays with changeover to take place at 3:30pm each Friday with such weeks to continue in the same pattern as the time in alternate weeks during the school terms.
ORDERS BY CONSENT
On special days, [X], [Y] and [Z] spend time with their father, and their time with their mother be suspended, as follows:
(a)from 4pm on Christmas Eve until 4pm on Christmas Day in odd numbered years and each alternate year thereafter;
(b)from 4pm on Christmas Day until 4pm on Boxing Day in even numbered years and each alternate year thereafter;
(c)from 6pm on the Saturday preceding Father’s Day until 6pm on Father’s Day;
(d)on each of [X], [Y] and [Z]’s birthdays and the father’s birthday, if [X], [Y] and [Z] are not otherwise spending time with their father:
(i)in the event the birthday falls on a school day, from the conclusion of school or 3:30pm until 6pm;
(ii)in the event the birthday falls on a weekend or a day when [X], [Y] and [Z] are not required to attend school, from 10am until 3pm; and
(e)at such other times as may be agreed in writing between the parents.
On special days, [X], [Y] and [Z] spend time with their mother, and their time with their father be suspended, as follows:
(a)from 4pm on Christmas Day until 4pm on Boxing Day in odd numbered years and each alternate year thereafter;
(b)from 4pm on Christmas Eve until 4pm on Christmas Day in even numbered years and each alternate year thereafter;
(c)from 6pm on the Saturday preceding Mother’s Day until 6pm on Mother’s Day;
(d)on each of the [X], [Y] and [Z]’s birthdays and the mother’s birthday, if [X], [Y] and [Z] are not otherwise spending time with their mother:
(i)in the event the birthday falls on a school day, from the conclusion of school or 3:30pm until 6pm;
(ii)in the event the birthday falls on a weekend or a day when [X], [Y] and [Z] are not required to attend school, from 10am until 3pm; and
(e)at such other times as may be agreed in writing between the parents.
The father be at liberty to telephone [X], [Y] or [Z] every second day when they are not in his care at 7:30pm or such other time as agreed in writing between the parents.
In the event changeover does not take place at [X], [Y] and [Z]’s schools, the father collect [X], [Y] and [Z] at the commencement of their time with him from outside the mother’s residence and the mother collect [X], [Y] and [Z] at the conclusion of that time from outside the father’s residence, unless otherwise agreed between the parents.
Each of the parents:
(a)immediately inform the other in the event that [X], [Y] and [Z] or any of them are involved in any serious accident or suffer from any serious illness;
(b)within 24 hours of an appointment being made, inform the other of any medical or other health practitioner with whom [X], [Y] or [Z] are scheduled to consult or has consulted and authorise the other parent to make enquiries with any such practitioner in relation to matters concerning [X], [Y] and [Z]’s health; and
(c)be permitted to attend all specialist medical appointments scheduled for [X], [Y] or [Z] regardless of whether [X], [Y] and [Z] are in that parent’s care on the day of the appointment.
Each parent be responsible for staying informed of school activities and communications.
The mother and father are each authorised to:
(a)attend any school in which any of [X], [Y] and [Z] is enrolled and to communicate with teachers and school staff in relation to [X], [Y] and [Z];
(b)receive copies of school reports, school photographs and notices usually provided to parents, at that parent’s expense (if any);
(c)attend any school function and/or activities, including extracurricular activities, which parents are invited to attend;
(d)attend [X], [Y] and [Z]’s out of school extracurricular activities and games; and
(e)provide a copy of these orders to any school or club in which [X], [Y] or [Z] is enrolled.
The parents advise each other of any change of telephone number or residential address within 24 hours of such change occurring.
The parents communicate by text message in case of emergency and otherwise by email or communication book to keep each other informed of [X], [Y] and [Z]’s health, education and development.
The parents be restrained from:
(a)denigrating the other parent or the other parent’s family in the presence, or within the hearing of, [X], [Y] and [Z], or any of them; and
(b)exposing [X], [Y] and [Z], or any of them, to family violence.
The mother and father are at liberty to live with [X], [Y] and [Z] in the (omitted) area.
The parents execute all documents that may be required to facilitate [X] and [Y] attending (omitted) Secondary College and [Z] attending (omitted) Primary School from the commencement of the 2019 school year.
Each parent be at liberty to travel with [X], [Y] and [Z] overseas, provided that:
(a)the travelling parent provide the non-travelling parent with written notice via letter or email of an intention to travel overseas 60 days prior to the date of intended travel, and such travel not occur during the non-travelling parent’s time with [X], [Y] and [Z] unless agreed in writing between the parents;
(b)the travelling parent provide the non-travelling parent with a detailed itinerary including copies of electronic or other return airline tickets 28 days prior to the intended travel;
(c)the travelling parent provide the non-travelling parent with details in writing of accommodation, including an address and a telephone number, of where [X], [Y] and [Z] will be residing during the trip, 28 days prior to the date of intended travel;
(d)each period of travel occur during a school holiday period unless agreed in writing between the parents;
(e)the father’s solicitor hold [X], [Y] and [Z]’s passports at all times other than when the mother or father require [X], [Y] and [Z]’s passports for travel, with the father’s solicitor to release their passports to the requesting party within seven days of receipt of the detailed itinerary pursuant to order 16(b) herein;
(f)the parents do all acts and things and sign all necessary documents to maintain current passports for [X], [Y] and [Z] at the parents’ joint expense; and
(g)the mother do one of the following:
(i)deposit the sum of $10,000 into the father’s solicitor’s trust account 28 days prior to travel with such sum to be returned to the mother within 14 days of [X], [Y] and [Z]’s return to Australia in accordance with the itinerary that is provided to the father; or
(ii)execute a transfer of land transferring her interest in a property in which she has an interest to the father, the original of which is to be provided to the father’s solicitor no less than 21 days prior to the proposed date of departure and held in escrow pending [X], [Y] and [Z]’s return to Australia in accordance with the itinerary that is provided to the father.
REQUEST
The Australian Federal Police remove the names of [X], [Y] and [Z] from the airport watch list at all points of international arrival and departure in Australia.
ORDER BY THE COURT
The balance of the proceeds of sale of the property situate at and known as Property A, be applied as follows:
(a)57% per cent to the wife, from which $7,070 ($2,370 for the wife’s psychiatric assessment and $4,700 for half of the two family reports) is to be contemporaneously paid to the husband; and
(b)43% per cent to the husband plus the sum of $7,070 referred to in the preceding paragraph.
ORDERS BY CONSENT
The parties each retain the superannuation entitlements in their respective names.
Unless otherwise specified in these orders, and save for the purpose of enforcing any monies due under these orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders, except for the following items which are to be retained by the husband:
(i)the husband’s tools;
(ii)the Holden motor vehicle;
(iii)antique furniture and jewellery inherited from the husband’s grandmother;
(iv)the husband’s books, qualifications and professional development certificates; and
(v)the three cabinets in the garage;
(b)monies standing to the credit of the parties in any personal bank account as at the date of these orders become the sole property of the party in whose name that account is held;
(c)all insurance policies remain the sole property of the named owner;
(d)each party be solely liable for and indemnify the other against any liability in his or her name together with any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(e)each party be solely responsible for the payment of any credit card debt accrued in their respective names as at the date of these orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATIONS
(A)Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Axell & McKnight is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5984 of 2016
| MS AXELL |
Applicant
And
| MR MCKNIGHT |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for parenting and property orders.
The mother is 45 years old. The father is 47 years old. The mother works part time in (employment omitted). The father works full time as a (occupation omitted). The parties commenced living together in 1993 and never married.
The parties have three children, [X], born on (omitted) 2004 (“[X]”), who was 14 years old as at the date of trial, [Y], born on (omitted) 2006 (“[Y]”), who was almost 11 years and 11 months old as at the date of trial and [Z], born on (omitted) 2008 (“[Z]”), who was 10 years old as at the date of trial.
The parents separated under the one roof in January 2016. The mother moved out of the family home with [X], [Y] and [Z] in March 2016. Cohabitation lasted about 23 years.
Although this matter had been highly contested, the parties by the conclusion of the final hearing were able to agree on all but two issues. The orders that were agreed are set out in detail below. In brief, and to their credit, the parties agreed to orders:
a)permitting the mother to travel overseas with [X], [Y] and [Z] on certain conditions; and
b)permitting the mother to relocate with [X], [Y] and [Z] to (omitted).
The mother’s principal reason for wishing to travel overseas is that she has family in (country omitted). The mother, and therefore [X], [Y] and [Z], are part (nationality omitted).
The mother’s principal reason for wishing to relocate to (omitted) was financial, as house prices are cheaper there than in Melbourne. To his credit, the father eventually recognised the reality of the situation and decided that he, too, would move to (omitted).
The two outstanding issues were:
a)whether [X], [Y] and [Z] should live with their mother and spend five nights a fortnight with their father, as proposed by the mother, or whether they should live with their parents in a week about arrangement, as proposed by the father; and
b)whether the proceeds of the sale of the former family home should be split 60:40, in the wife’s favour, as she proposed, or 50:50, as the husband proposed.
The family consultant, Ms R, after some equivocation, recommended that [X], [Y] and [Z] spend five nights a fortnight with their father. The independent children’s lawyer supported that recommendation.
It was common ground that [Y] and [Z] had attended counselling.
The mother was the primary carer of [X], [Y] and [Z] until the father stopped working in about 2011. The reasons for the father stopping working were not particularly clear. At that point, the mother commenced part time employment and the father took over more of the parenting duties. However, the mother maintained that she continued to do the bulk of the household chores, including cooking and cleaning. I found the mother to be very convincing on this point and accept that aspect of her evidence. The father returned to work after separation, but is also receiving financial assistance from his mother.
Psychiatric issues
A significant issue through most of the proceeding, but which was resolved by the parties by the time of trial, was the mother’s claim that the father had a serious psychiatric disorder that involved a high level of paranoia and psychosis. More particularly, the mother alleged that the father believed his work colleagues were all terrorists, and that the Freemasons had damaged furniture and tampered with devices in the family home. The father denied that he had such beliefs.
The mother called the CAT team for the father on 14 March 2016. The father was taken to (omitted) Hospital where he was found to have no psychiatric issues and to present no threat to anyone.
Dr G did a psychiatric assessment of both parents. He wrote a report dated 24 January 2017 in relation to the father and a report dated 31 January 2017 in relation to the mother. He found that the mother did not suffer from a psychiatric disorder. He found that the available information did not lead to a definite diagnosis that the father had a psychiatric disorder. He said that the father did not demonstrate any signs of mental illness or major cognitive deficits.
However, Dr G said that, notwithstanding the above, if the court accepted the mother’s version of events, there must be concerns about the father’s ongoing mental state and [X], [Y] and [Z]’s time with him would need to be supervised. Dr G said that, on the other hand, if the court accepted the father’s version of events, there would be no psychiatric contraindication for the father caring for [X], [Y] and [Z].
As mentioned above, the parents and the independent children’s lawyer resolved this issue by agreement by the time of the trial. The gist of the agreement was that a line would be drawn in the sand and the trial would proceed as if the mother had never made the allegations. The court was not invited to make any findings about the mother’s credibility in the light of the allegations and the court was not invited to make any findings to the effect that the father has or had a psychiatric disorder. I am content to proceed on that basis. However, I do note that the mother’s allegations, if false, would undoubtedly have significantly contributed to the difficulties that the parents have had in dealing with each other post-separation and, if true, would go some way to explaining those difficulties.
Consent orders
To their credit, on the last of the trial, the parents consented to parenting orders as follows:
1.That the Applicant Mother (“the Mother”) and Respondent Father (“the Father”) have equal shared parental responsibility for the children:
(a)[X] born (omitted) 2004;
(b)[Y] born (omitted) 2006;
(c)[Z] born (omitted) 2008;
(“the children”).
…
5.That on special days, the children spend time with the Father, and the Mother’s time be suspended, as follows:
(a)From 4.00pm on Christmas Eve until 4.00pm on Christmas Day in odd numbered years and each alternate year thereafter;
(b)From 4.00pm on Christmas Day until 4.00pm on Boxing Day in even numbered years and each alternate year thereafter;
(c)From 6.00pm on the Saturday preceding Father’s Day until 6.00pm on Father’s Day
(d)On each of the children’s birthdays and the Father’s birthday, if the children are not otherwise spending time with the Father:
(i) In the event the birthday falls on a school day from the conclusion of school or 3:30pm until 6:00pm;
(ii) In the event the birthday falls on a weekend or a day when the children are not required to attend school, from 10:00am until 3:00pm.
(e)At such other times as may be agreed in writing between the parties.
6.That on special days, the children spend time with the Mother, and the Father’s time be suspended, as follows:
(a)From 4.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years and each alternate year thereafter;
(b)From 4.00pm on Christmas Eve until 4.00pm on Christmas Day in even numbered years and each alternate year thereafter;
(c)From 6.00pm on the Saturday preceding Mother’s Day until 6.00pm on Mother’s Day’
(d)…
(e)On each of the children’s birthdays and the Mother’s birthday, if the children are not otherwise spending time with the Mother:
(i) In the event the birthday falls on a school day from the conclusion of school or 3:30pm until 6:00pm;
(ii) In the event the birthday falls on a weekend or a day when the children are not required to attend school, from 10:00am until 3:00pm.
(f)At such other times as may be agreed in writing between the parties.
7.That the Father be at liberty to telephone the children every second day when the children are not in his care at 7.30pm or such other time as agreed in writing between the parties.
8.That in the event changeover does not take place at the children’s school(s), the Father collect the children at the commencement of his time from outside the Mother’s residence and the Mother collect the children at the commencement of her time from outside the Father’s residence, unless otherwise agreed.
9.That each of the parties:
(a)Immediately inform the other in the event that the children or any of them are involved in any serious accident or suffers from any serious illness;
(b)Within 24 hours of an appointment being made, inform the other of any medical or other health practitioner with whom the children (or any of them) are scheduled to consult with or has consulted with and authorise the other parent to make enquiries with such practitioners(s) in relation to matters concerning the children’s health;
(c)Be permitted to attend all specialist medical appointments scheduled for the children regardless of whether the children are in their care on the day of the appointment.
10.The responsibility to stay informed of school activities and communications resides with each parent and that each of the Mother and Father are authorised to:
(a)Attend any school in which any of the children are enrolled and to communicate with teachers and school staff in relation to the children;
(b)Receive copies of school reports, school photographs and notices usually provided to the parents, at their expense respectively (if any);
(c)Attend any school function and/or activities, including extracurricular activities, to which parents are invited to attend;
(d)Attend the children’s out of school extracurricular activities and games;
(e)Provide a copy of these Orders to any school or club in which the children are enrolled.
11.That the parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
12.That the parties communicate by text message in case of emergency and email or communication book to keep each other informed of the children’s health, education and development.
13.That the parties are restrained by injunction from:
(a)denigrating the other party or the other party’s family in the presence, or within the hearing of, the children; and
(b)exposing the children to family violence.
14.The Mother and Father are at liberty to live with the children in the (omitted) area.
15.The parties execute all documents that may be required to facilitate the children [X] and [Y] attending (omitted) Secondary College and the child [Z] attending (omitted) Primary School from the commencement of the 2019 school year.
16.That Orders 3 to 6 of the Interim Orders made 16 August 2016 be vacated and that each parent be at liberty to travel with the children overseas, PROVIDED THAT:
(a)The travelling parent provide the non-travelling parent with written notice via letter or email of an intention to travel overseas 60 days prior to the date of intended travel, such travel not to occur during the non-travelling parent’s time with the children unless agreed in writing between the parties;
(b)That the travelling parent provide the non-travelling parent with a detailed itinerary including copies of electronic or other return airline tickets 28 days prior to the intended travel;
(c)That the travelling parent provide the non-travelling parent with details in writing of accommodation, including address and telephone number, of where the children will be residing during the trip, 28 days prior to the date of intended travel;
(d)That each period of travel occurs during a school holiday period unless agreed in writing between the parties;
(d)That the Father’s solicitor holds the children’s passports at all times other than when the Mother or Father requires the children’s passport for travel, with the Father’s solicitor to release the children’s passports to the requesting party within seven (7) days of receipt of the detailed itinerary pursuant to Order 17(b) herein;
(e)That the parties do all acts and things and sign all necessary documents to maintain current passports for the children at their joint expense; and
(f)That the Mother do one of the following:
(i) deposit the sum of $10,000 into the Father’s solicitor’s trust account 28 days prior to travel with such sum to be returned to the Mother within 14 days of the children’s return to Australia in accordance with the itinerary that is provided to the Father; or
(ii) execute a transfer of land transferring her interest in a property in which she has an interest to the Father, the original [of] which is to be provided to the Father’s solicitor no less than 21 days prior to the proposed date of departure and held in escrow pending [the] children’s return to Australia in accordance with the itinerary that is provided to the Father.
In relation to property, the parties agreed that the following orders should be made, with the court to insert the percentage split:
17.The balance of the proceeds of sale from the sale of the property situate at and known as Property A be applied as follows:
(a)____ per cent to the Mother, from which $7,070 ($2,370 for the Mother’s psychiatric assessment and $4,700 for half of the two Family Reports) is to be contemporaneously paid to the Father; and
(b)____ per cent to the Father plus the sum of $7,070 referred to in the preceding paragraph.
18.That the parties each retain the superannuation entitlements in their respective name and control.
19.That unless otherwise specified in these Orders, and save for the purpose of enforcing any monies due under these Orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders, except for the following items to be retained by the Respondent:
i. the Respondent’s tools
ii. the Holden motor vehicle
iii. antique furniture and jewellery inherited from the Respondent’s grandmother
iv. the Respondent’s books, qualifications and professional development certificates;
v. three cabinets in the garage.
(b)monies standing to the credit of the parties in any personal bank account as at the date of these Orders shall become the sole property of the party in whose name that account is held;
(c)all insurance policies remain the sole property of the named owner;
(d)each party shall be solely liable for and indemnify the other against any liability in his or her name together with any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)each party be solely responsible for the payment of any credit card debt accrued in their respective names as at the date of these Orders; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Material relied upon
The mother relied on:
a)her amended initiating application filed on 22 February 2018;
b)her financial statement filed on 18 February 2018;
c)her affidavits sworn or affirmed on 22 June 2016, 7 November 2016, 19 February 2017 and 18 February 2018; and
d)her outline of case filed on 1 March 2018.
The father relied on:
a)his further amended response filed on 20 February 2018;
b)his financial statement filed on 21 February 2018;
c)his affidavit affirmed on 20 February 2018;
d)the affidavits sworn or affirmed by Ms M on 9 November 2016 and on 20 March 2017;
e)the affidavit affirmed by Ms R on 1 September 2017, which annexes the two family reports she prepared;
f)an affidavit affirmed by Dr G on 23 April 2017, which annexes psychiatric assessments of the mother and the father; and
g)his outline of case filed on 2 March 2018.
The independent children’s lawyer relied on:
a)the s.67Z responses from the Department of Health and Human Services (“DHHS”) dated 19 July 2016 and 10 February 2017;
b)the affidavits sworn or affirmed by Ms M on 9 November 2016 and 20 March 2017;
c)the affidavit affirmed by Ms R on 1 September 2017, which annexed her two family reports; and
d)the affidavit affirmed by Dr G on 23 April 2017, which annexed a psychiatric report on the mother and the father.
On 5 March 2018, the first day of hearing, the court gave the mother leave to rely on her affidavit sworn or affirmed on 18 February 2018, although it was filed late. However, in respect of that affidavit, orders were made by consent on 5 March 2018 striking out paragraphs 6, 7, 16(b), 20, 22 (except for the first sentence), 23, 24, the fourth sentence of paragraph 29 and the third last sentence of paragraph 30.
In addition, on 5 March 2018, orders were made by consent striking out:
a)the first sentence of paragraph 11, paragraphs 12 to 27 and paragraphs 32 to 50, of the attachment to the affidavit sworn or affirmed by the mother on 19 February 2017, and all of the attachments thereto; and
b)paragraphs 7, 13(a) and 13(c) of the affidavit sworn or affirmed by the mother on 22 June 2016.
The mother, the father and Ms R were cross-examined. The other deponents of affidavits that were relied upon were not cross-examined.
History of proceedings
This matter first came before the court on 16 August 2016. On that day, orders were made:
a)by consent that:
i)the matter be adjourned to an interim hearing on 11 November 2016 and a final hearing on 14 September 2017;
ii)until further order, [X], [Y] and [Z] live with their mother; and
b)by the court that:
i)an independent children’s lawyer be appointed; and
ii)until further order:
A.[X], [Y] and [Z]’s names be maintained on the airport watch list;
B.[X], [Y] and [Z] spend time with their father under professional supervision for up to five hours each alternate week; and
C.the father be restrained from physically disciplining [X], [Y] and [Z].
At the interim hearing on 11 November 2016, orders were made:
a)by consent that:
i)the matter be adjourned to 21 March 2017 for mention;
ii)a psychiatric assessment of each party be conducted by Dr G; and
b)by the court that:
i)[X], [Y] and [Z] spend time with their father on 13 and 20 November 2016 from 9am to 12md and, thereafter each Saturday from 9am to 1pm, supervised by (omitted) Family Services; and
ii)the parents be permitted to draw down on their mortgage to pay for the supervision.
Dr G completed a psychiatric report in respect of the mother, which is dated 31 January 2017, and in respect of the father, which is dated 24 January 2017.
Ms R provided her first family report, which was dated 20 March 2017.
On 21 March 2017, orders were made by consent that:
a)the matter be adjourned to 18 July 2017 for interim hearing;
b)[X], [Y] and [Z] spend unsupervised time with their father gradually increasing to each Sunday from 10am to 7pm and each Thursday from 4:30pm to 7pm, as well as each Saturday from 10am to 7pm in the school term holidays;
c)the father continue to attend upon Mr F for counselling; and
d)the father attend a Tuning into Kids program.
On 13 June 2017, the father filed an application in a case seeking orders that:
a)the final hearing listed on 14 September 2017 be adjourned to the next available date; and
b)the parents attend upon Ms R on 14 August 2017 for the preparation of an updated family report.
That application in a case resolved with orders being made in chambers by consent on 21 June 2017 that:
a)the final hearing listed on 14 September 2017 be adjourned to 5 March 2018;
b)the parties attend upon Ms R on 14 August 2017 for the for the preparation of an updated family report; and
c)[X], [Y] and [Z] spend time with their father during the Term 2 school holidays from 10am until 7pm on Tuesday 4 July 2017, Thursday 6 July 2017 and Thursday 13 July 2017, in addition to their usual time with him.
Ms R prepared her second family report, which was dated 26 August 2017.
On 14 September 2017, interim orders were made by consent including orders that:
a)all previous parenting orders be discharged;
b)until further order:
i)the parents have equal shared parental responsibility for [X], [Y] and [Z];
ii)[X], [Y] and [Z] live with their mother; and
iii)[X], [Y] and [Z] spend time with their father:
A.each alternate weekend from after school on Friday until the commencement of school on Monday;
B.each alternate Wednesday from after school until the commencement of school on Thursday;
C.for half of all school holidays; and
D.for time on special occasions; and
c)the former family home be sold.
On 22 November 2017, the matter was listed for callover before Judge Williams. On that day, orders were made by consent that:
a)the parties attend a private mediation in relation to both parenting and property matters; and
b)the matter be adjourned to the compliance list before Judge Williams on 23 January 2018.
The matter was heard in the compliance list before Judge Williams on 23 January 2018. Orders were made by consent on that day that:
a)the parties do all things necessary to have the deposit from the sale of the former family home released as soon as possible and 50% be distributed to each of the mother and the father; and
b)the parties attend a private mediation on 22 February 2018.
The matter did not resolve at mediation.
On the last day of the final hearing, 7 March 2018, orders were made by consent that:
a)each of the husband and the wife receive a part property settlement of $125,000 and the balance of the proceeds of sale of the former family home remain in an interest bearing trust account until further order; and
b)the husband be at liberty to collect certain chattels.
Parenting
Detailed parenting proposals
The mother proposed that:
3.The children live with the Mother.
4.The children spend time and communicate with the Father as follows:
(a)In each alternate week during school terms, from the conclusion of school on Friday (or 3:30pm if Friday is not a school day) until the commencement of school the following Wednesday (or 9:00am if Wednesday is not a school day);
(b)During the term 1, 2 and 3 school term holidays the time the children spend with the Father in the alternate weeks referred to in the preceding paragraph shall be extended to conclude at 6:00pm on Friday and the usual regime shall continue in the same cycle following the children spending one week with the Mother;
(c)On a week about basis during the summer school holidays with changeover to take place at 3:30pm each Friday with such weeks to continue in the same pattern as the time in alternate weeks during the school terms.
The father proposed that:
2.The children live with the parties on a week about basis, with changeover to take place at the conclusion of school each Friday, or 3:30pm if Friday is not a school day.
The first family report
The first family report prepared by Ms R was dated 20 March 2017 and is marked as annexure S1 to the affidavit she affirmed on 1 September 2017.
Under the heading “Background”, Ms R said, among other things:
2.[The mother] was the primary parent and homemaker and [the father] the primary breadwinner till he ceased work about five years ago due to ill health at which time [the mother] began part-time work and [the father] assumed primary role of homemaker and carer. [The mother] contends however, she continued to be primarily responsible for the majority of household tasks.
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9. The report from Ms M dated 9 November 2017, the supervising agency, confirms the children enjoy their time with their Father and no issues have been reported around the Father’s behaviour or his time with the children. The writer was informed by the ICL that the current report dated 18 March 2017 did not identify any issues of concern and that the children’s time with their Father has been a positive experience for them.
In relation to the mother, Ms R said, among other things:
18.[The mother] alleges family violence and verbal abuse perpetrated by [the father] upon herself and the children. She claims he is controlling [as] evidenced by his refusal to allow her to join him and the children on their outings. She was unable to have a relationship with her family in (country omitted).
19.Although [the father] was at home full-time for the last five years, [the mother] insists she remained responsible for the upkeep of the house and domestic tasks claiming ‘he just read and relaxed’. She acknowledges his interest and time spent in gardening, growing vegetables which she then preserved, made sauces and pickles. She acknowledges there were periods when they were united as a family.
20.[The mother] contends she was unable to negotiate an appropriate parenting plan with the Father because of his mother’s interference. She believes she had interfered in the Father’s decision not to travel to (country omitted) after plans were made for the trip. [The mother] insists she is not angry with his mother although the texts messages (provided in [the father’s] affidavit of [the mother] referring to his mother) suggest she is very angry and hostile towards her. She explains her comments in terms of being ‘in a bad spot’ at the time ‘I was down.....beyond frustration’. [The mother] may not be able to fully assess her own emotional responses as it is apparent she does not have a good relationship with [the paternal grandmother] and continues to perceive her as antagonistic particularly during the time she was in Melbourne supporting her son. She does not trust [the paternal grandmother] and is not comfortable with her playing a role in the children’s life.
In relation to the father, Ms R said, among other things:
22.[The father] presents as a co-operative and pleasant. He was lucid and affect was appropriate. There was little evidence of anger or hostility about his current situation. He was about to commence full time work in (omitted) from 8am to 4.15. He says he accepted a lower paid job specifically to be available for the children in the afternoons.
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26.[The father] has been focused on challenging the assessments of DHHS which he describes as shoddy. He contends there have been ‘baseless claims’ made against him and his mother. He believes the matter was poorly managed by his legal representative at the time which resulted in inappropriate and unfair orders against him. He believes wrong conclusions and inappropriate decisions have been made through inadequately and inappropriately managed process.
27.[The father] was thorough and methodical in the level of detail as he explained the various efforts he has had to make to address the failure of the system to adequately assess his situation. He is focussed on righting the failures of the systems to ensure a fair outcome.
28.[The father] is concerned [the mother] denied him time with the children which ‘has destabilised his relationship’ with the children. He says they have ‘endured a significant period of time without me’. He worries and says ‘I don’t know what they’ve been indoctrinated with by their Mother’. He contends he has devoted all his time to his children and hopes to regain the parenting role he had in the past.
29.… He is concerned he is now not able to assist the children as with their homework. He says, ‘it pains me to see the children struggling with homework’ referring particularly to [[X]] who he says is pleading with him to help her with her biology project, a topic about which he is knowledgeable and well-versed.
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31.[The father] talked with anticipation about organising activities for the children and hopes to be able to take them to the (omitted) market ‘which they really like’ as soon as possible as the children enjoy it. He was hoping to take the children to the (omitted) but says ‘it did not fall on his week’.
In relation to the children, Ms R said:
33.[X] presents as a mature and caring girl, articulate and easily engaged. She attends Year 8 at (omitted) High School which she says she enjoys. She reports having good friendships at school.
34.Generally, [X]’s views did not appear to have been unduly influenced by either parent although at times she echoed her Mother’s views. She understood the process was to give her a voice and she was aware she was not required to make decisions.
35.[X] recalled family life before the separation and said ‘there were good bits ....and not good bits’. She happily recalled outings to the beach with her Father which was a favourite pastime. She says her Mother generally did not attend because ‘Mum would work’; on beach days ‘Mum stayed home’. She thought her Mother wanted to remain at home but her Mother has since disclosed to her she had wanted to attend but her Father wouldn’t allow it. She describes her parents’ relationship as ‘not a happy one’ but they were civil to one another.
36. Referring to ‘the bad bits’ [X] disclosed her Father ‘sometimes hit us’ recalling one occasion when ‘he pulled me off the bed with my legs..... it hurt’. She says her Father tended to get angry with her and she was generally the focus of his anger and discipline and not her sisters. She says she’s ‘not scared’ of her Father ‘except when he gets angry .... he’d get this look on his face’. However she said ‘he was nice most of the time’.
37.[X] recalls her Father picking them up and dropping them off at school. ‘He was always in the garden’. She says he would sometimes cook dinner. She complained he sometimes gave her excessive chores and she repeated her Mother’s concerns ‘he was supposed to do it.... he was home’. She says she remembers being really excited when her Mother had days off work.
38.[X] reports she does not have a good relationship with the paternal grandmother and does not feel comfortable with her as a supervisor. She says ‘she causes trouble’ and recalled her disappointment as they were planning to fly to (country omitted) but when the paternal grandmother came to Melbourne ‘it was the worst’ as she talked her Father out of the trip. She says she would love to travel to (country omitted) and is aware of the flight restrictions of the airport watch list. She has no doubt she would return to Melbourne; ‘I would come back because I love my Dad ..... I'd miss him’.
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40.[X] feels her Mother is happier since the separation. She also feels better because ‘we don’t get hit anymore’ by her Father. She says things are ‘much less stressful’. She is clear she wants to live with her Mother and she is happy to spend time with her Father. She expressed little concern or anxiety about spending time with her Father and is open to unsupervised time; ‘to give it a try’. She is open to spending up to one day with him at this stage; ‘I would be really comfortable with that’. She does not wish to spend overnight time with him.
41.[Y] is eleven years old and attend[s] Grade 5. She presents as a gentle and thoughtful child, she was unguarded and straightforward in interview and her comments and views appeared to be largely her own and not unduly influenced by either parent.
42.[Y] recalled a ‘happy family’ when her parents were together except for when her parents were fighting she felt ‘unsure’ and ‘scared’. She seems to have accepted the separation and perceives it in positive terms; ‘now it’s good ... because there's no fighting’. She says ‘I think our Dad did something to Mum .....Mum said he pushed her ....I didn’t see it but it’s probably true’. Referencing her own reality, she goes on to say ‘he was a good Dad’.
43.[Y] recalls doing many ‘fun things’ together with her Father such as bike riding, her father taking them to the pool and ‘to new places’. She recalls sharing the cooking with her parents. She fondly remembers the long road trips with her Father and she pines, ‘I would love to do it again’.
44.[Y] says she trusts both her parents but ‘Mum a bit more’. She wants to live with her Mother and spend time with her Father. She feels confident and secure her Father cares for her but she says ‘he makes the wrong decisions’ sometimes. She did not detail what those decisions were.
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46.[Y] said she had missed and wanted to see her Father after the separation. She asked her Mother ‘how much longer do we have to wait’ but her Mother was unable to specify a time period.
47.[Y] expressed little anxiety or distress if supervision ceased; “I’d be OK”. She adds, ‘I’d like to at least try it’. She says she would now be able to assert herself and tell her Father ‘I don’t want to know’ if he should once again talk about his supposed delusions. She feels supported by her Mother to spend time with him.
48.[Z] is 9 years old and attend[s] Grade 3. She was aware she would be seeing her Father on the day of interview and was delighted to see him. She did not feel uncomfortable with both parents at the office particularly as each parent had occupied different rooms.
49.[Z] talked about not being able to see her Father for some time and says she missed him. However, she said she missed him ‘half and half’. She didn’t miss him ‘when he was rude to Mum..... they would fight’. She says he sometimes ‘gets angry.... and says hurtful things’. She recounted the event when ‘he said rude things to [X] ..... on her special night’ referring to her valedictory dinner.
50.[Z] also referred to her Father pulling [X] by the legs and he ‘threatens me’ but there was no disclosure of her Father being abusive or using physical punishment with her.
51.[Z] says she loves her Father ‘but when he gets angry, 1 get angry’. She has embraced the separation ‘because Mum is happy she can have her house ..... She will enjoy that’. And she adds her Father is also free ‘to do what he wants’.
52.[Z] is unconcerned if she spends unsupervised time with her Father; ‘I’d be okay’. But she says, ‘I don’t want Dad to talk about untrue things’, such as people coming to the house and talking about terrorists. She notes that ‘Dad is good around Mr N, the supervisor. She was open to a period of unsupervised time ‘it’s good to see if they work’.
53.[Z] is aware they are on the airport watch-list and therefore, unable to trave1. She says her Mother is angry and annoyed they can't travel to (country omitted) . She says she loves to travel and has her ‘fingers crossed’ they will be removed from the airport watch-list. She is aware her Father believes ‘we will stay forever’ but she believes otherwise; ‘I don't think that’s true .....We can't live without a Dad’.
In relation to her observation of [X], [Y] and [Z] with their father, Ms R said:
54.The children were happy to see their Father and readily joined him in the office. They engaged effortlessly with him with no sign of apprehension. [Y] and [Z] generally played on the floor while their Father sat nearby observing and in conversation with [X]. [X] engaged readily in conversation with him and they seemed to enjoy updating each other of recent events. There was an easy flow of conversation and a relaxed and familiar manner between them.
55.[Y] and [Z] mainly played together on the floor occasionally joining in conversation with [X] and her Father. There seems to be a shared close and strong bond between them. [[X]] was not interested in games or play but preferred and seemed happy to remain engaged in conversation with her Father. This dynamic is noted in the first report by Ms M.
56.[The father] seems to be a well versed man and spoke about a wide range of topics and interests with his children. He displayed a genuine interest in them and what they had been doing. He seemed to listen well and was appropriately responsive to them. Although most of his conversation tended to be with [X], he was nonetheless attentive to all three children responding to each individually as they engaged with him. [Y] and [Z] at times moved from their play to interact directly with their father. There was no sense of competition between the children for their father's attention.
57.[The father] came prepared with food and drinks including cakes for the children. There was nothing to suggest the children were worried or anxious being with their Father and indeed appeared comfortable, relaxed and happy. The children were unguarded and spontaneous and [the father’s] interaction was not contrived.
Ms R concluded in her evaluation as follows:
64.… The Supervisor’s report also lends confidence about his parenting capacity although it may be he needs to modify his discipline of the children.
65.It appears [the father] has been actively involved in the children’s life and activities notwithstanding [the mother’s] claims she remained responsible for household tasks. He seems to have played a significant role in attending to their homework; the garden was a focus of activity for the family; and there were frequent outings with their Father irrespective of the reasons [the mother] did not accompany them. The children miss their Father and the activities they shared with him.
66.Risk to the children is assessed as emanating from their Father’s mental health and the alleged physical abuse. There appears to be two main incidents of abuse which was reported by the children and their Mother; [the father] pulling [X] by the legs and verbally abusing her on the night of her valedictory dinner. While this is concerning and suggests they were an angry response by [the father] who was unable to control his anger, [the father] is not perceived as a generally abusive parent by his children but as ‘a good Dad’ who was ‘mostly nice’. This gives some reassurance to his capacity for appropriate parenting but he may be further assisted with parenting support and education.
67.The physical risk to the children can be addressed with a Court Order prohibiting physical punishment and verbal abuse of the children; [the father] attending a parenting programme as distinct [from] a Post Separation Parenting Programme; and his time with the children being limited to minimise the frustration levels associated with parenting and the possible anger that may erupt from lack of patience, frustration and increased irritability.
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69.The children love their Father and have a strong need and desire to spend time with him. They seem comfortable with him, they trust him and are not afraid of or anxious with him although there are some concerns about his discipline of the children. While it is acknowledged they feel safe and secure with the supervisor, their reflections of their Father suggest that [they] have had a good and close relationship with him. Their confidence in their Father seems to stem beyond the several months of supervised time with him.
70.Of note is each child’s readiness to abandon supervision notwithstanding the different opinion they expressed to their Mother. At the very least they seemed comfortable to ‘give it a go’. Suspending supervision is recommended. Initially time with the children should occur weekly initially say from 10am to 3pm for a month extending to 5pm for another month before a further increase to 7pm. Activity based time is recommended initially so the children are in public surrounds. With the winter months approaching this should not be a permanent limitation placed on the time but is suggested as an initial option to assist the children and to further minimise any perceived or possible risk.
It was common ground that Ms R had incorrectly conflated two incidents of family violence. The incident where the father allegedly pulled [X] off her bed by her legs occurred at a different time to the alleged verbal abuse on the night of [X]’s valedictory dinner. However, it was not suggested that Ms R’s report or recommendations were undermined by this error.
The second family report
The second family report prepared by Ms R is dated 26 August 2017 and is marked as annexure S2 to the affidavit she affirmed on 1 September 2017.
In relation to the father, Ms R said:
2.Following the preparation of that report, Interim Court Orders were made on 21 March which provide for the children to live with their Mother and spend unsupervised time with their Father each Thursday from 4.30 to 7pm; and each Sunday from 10am to 7pm. Unsupervised time commenced on 23 March 2017 and continued as ordered till 15 April 2017 when [the father] suffered an injury while roller blading with the children during one of the specified times together. His mobility was restricted due to his injuries and time with the children was suspended except on two occasions when [the mother] took the children to spend time with him at his house.
3.Time with the Father resumed as ordered on Thursday 1 June and continues to date.
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11.[The father] presented as coherent, his thought processes rational and able to focus. He was compelled to present the writer with a comprehensive list and evidence of the level of involvement with his children and variety of activities he has shared with them since spending unsupervised time with them. He was keen for the writer to know and understand his involvement with the girls, even with his leg injury, and how much they enjoy and benefit from their time with him.
12.[The father] presents as an intelligent and resourceful man who engages with the children on many levels including recreational, educational and simply having fun. He spoke at length of the simple yet creative and inventive ways of teaching and engaging with the children. He says, ‘we’ve created fun out of nothing’ such as collecting kindling during a walk in the park, using it to set a barbecue fire and cooking dinner. He helped [X] with an hydrology homework project, by making a (project omitted) and used it to explain precipitation. She won an award at school and as a reward, he took them out to a Chinese restaurant.
13.It appears [the father] takes every opportunity to support the children’s homework with creative ideas; and plans different and stimulating activities in which they all engage happily and have fun together. He listed several activities they enjoy including making slime, playing music, playing ‘(omitted) in the car, etc. most of which do not require excessive cost. He wants to support the children in their extracurricular activities but his efforts to enrol [X] a (sport omitted) club were reportedly thwarted by their Mother who preferred a different venue which he laments is not easily accessible for them.
In relation to the mother, Ms R said:
20.While [the mother] wants a defined routine of time for the children, she does not stipulate with any clarity or consistency what that routine should be. When the option of alternate weekend was discussed, she indicated she is open to a regime of alternate weekend from Friday to Monday morning. She does not accept the Father’s proposal of the first two weeks of time with the children as it includes ‘too many days’.
21.However, she also expresses hesitation and doubt as to the benefit of the children’s time with their Father. She says the children need to have a relationship with him yet she is unable to acknowledge the value of the Father’s role in their life other than he has chickens for the children; ‘not every child has that opportunity’. She says the children ‘are always trying to please’ their Father and believes [X] ‘is probably really scared of him’. She did not expand on what makes [X] fearful.
22.[The mother] contends she has attempted to communicate with [the father] and learnt from the parenting program to use a communication book which she attempted to introduce but [the father] rejected. She says that eliminated the only avenue of communication with him. She is upset he communicates through the children of which she disapproves; ‘I hate that’ and she adds, the children ‘don't like it’, She is critical of his attempts to negotiate directly with the children about their sporting activities which she says is ‘not fair he leaves it up to the girls’.
In relation to [X], [Y] and [Z], Ms R said:
25.The children were interviewed together. Generally, they gave their individual opinion but their views and wishes were mostly in accord. At times they were observed to eye one another as if to confirm what to say. They replied referring to the plural ‘we’ rather than to the first person singular, so that they perceive issues as a group and there was little if any individual opinion or opposing view. It suggests some previous discussion between them or exposure to discussions. They were all aware of and provided the same information.
26.The children agreed they enjoy spending time with their Father and are happy supervision is no longer required; ‘that’s good ...we don’t miss it’. They agreed ‘so far everything is going well’. Their Father helps them with their homework and they say ‘we have fun’. When asked about their previously stated concerns around the Father’s alleged delusions, they confirmed this is no longer the case and that it occurred ‘only when we were together’ before separation. They confirmed ‘we are all happy to spend time with Dad’.
27.Although they had no issue about spending time with their Father, they all indicated they do not want overnight time because ‘it’s better to leave it as it is’. They explained, ‘we’re not ready’ but could not articulate when they would be ready except to say ‘when we fully get used to it’. When pressed about readiness, they went on to say ‘Mum’s not ready’, [Z] adding ‘like us’. They explain ‘Mum’s not comfortable with overnight....she wants what’s best for us’.
28.[X] suggested and was supported by her sisters, they spend an added evening during the week with their Father. She proposed Tuesday after school as her Mother works ‘and we need a babysitter’. They say they had not suggested this to their Father.
29.The children report no mention is made of their grandmother when with their Father; but they say ‘we don’t want Nanna to be there’. They say ‘Mum is not comfortable with Nanna around’. They say their Mother does not understand why their Father forgives her ‘especially after all she did to him’. [Y] added ‘she didn't give him the right help when he had mental things’.
30.The children recall their Mother and grandmother ‘were friends for a while’ but ‘Mum doesn’t like her...she just causes a lot of trouble...she put our clothes in a rubbish bag’ repeating the history of the argument between their Mother and grandmother at the time of their parents’ separation. Referring to their grandmother, they say ‘she doesn’t deserve to be there....she kicked us out of the house....she stopped our Mother going to (country omitted)’. They repeated their Mother’s claim that [the paternal grandmother] had neglected their Father ‘when he was little and she’d go to her boyfriends’.
31.The children spoke about the poor condition of their home; ‘it’s gotten worse’ although they say it had been ‘bad for a long time’. They feel ‘it’s not right for us to live in this condition' while their Father ‘stopped Mum getting a car’ when they lived together. They went on to say it is ‘not fair he got a new house ....and a new car’. They say ‘Dad keeps delaying the court.... It’s unfair’.
In relation to her observations, Ms R said:
33.[The father] had come prepared with food drink and games for the children. There was no difference in the children’s demeanour and interaction with their Father from what was observed six months earlier. They are comfortable and relaxed with him, have a happy and easy-going demeanour and relate easily and spontaneously with him. They actively seek to engage with him. There were smiles and easy flow of conversation. [The father] spoke proudly of the children and their achievements. At the conclusion of the day, the children helped their Father down the stairs as he was still on crutches.
34.The children were equally comfortable, relaxed and engaged with their Mother as they sat with her in the waiting room; and happily left at the end of the day with her.
Ms R concluded in her evaluation as follows:
36.By all accounts, time with the Father is ‘working well’. The children say they enjoy their time with him and they ‘have fun’. They did not have any concerns and indeed spoke positively of their time with their Father.
37.[The father’s] presentation has not triggered any concerns about his mental health. He is methodical, logical and seems to prefer structure and order, characteristics often associated with conditions such as Asperger’s rather than mental illness. The children’s report of their experiences with their Father do not point to any anxiety, worry or fear.
38.[The father] delights in the children and ensures they are engaged in different activities each time they are with him. He [focuses] on the children and their needs; ensures homework is done and seems to place significant energy and time into assisting the children with their projects. He seems to be an organised and methodical man which augurs well in managing three children for short periods of time. There is nothing to suggest he poses a risk to the children either physically or emotionally. He seems to shield them from the parental conflict and disputes and appropriately reassure them decision making is the parents’ responsibility.
39. [The mother] confirms the children like spending time with their Father him (sic) but are reluctant to increase their time because they miss her. Other than insisting the children require routine, she is vague and noncommittal about any parenting arrangement relying on the children’s reported statements to her that they miss her and hence, do not wish to increase their time with their Father. While she claims the children need a relationship with their Father, she is unable to acknowledge any contribution he can make to the children’s welfare, or the value of his role as a father.
40.It is apparent from the children’s responses they have been witness to or directly engaged in adult issues and conversations. Their opposition to spending time with their grandmother for example, does not relate to any personal experience but their Mother’s acrimony towards her. There is little to suggest they are at risk with their grandmother.
41.However, it will be difficult for the girls to engage freely with her or to embrace her in their lives while they are aware of their Mother’s disapproval and anger towards [the paternal grandmother]. Unless they are given clear permission and approval by their Mother to engage with their grandmother, they are likely to experience loyalty conflict and anxiety.
42.Grandparents offer unique relationships to children, they hold the history of the family, they have valuable experience and they can be a source of support. The children should not be denied opportunities to know and spend time with their Grandmother.
43.The children’s wish to delay overnight time with their Father seems to be significantly influenced by their Mother, either deliberately or inadvertently. The children are aware of their Mother’s opposition to overnight time; she is ‘not ready’ and ‘not comfortable’; they echo her reasons for delaying overnight time.
44.The children have more information than they need to know; and it is of significant concern their opinions and views have been coloured by the information they have been given or exposed to. They tend to perceive the parental dispute from their Mother’s viewpoint, that their circumstances are ‘unfair’ and inequitable. At best, it appears [the mother] has been careless in shielding the children from her anger and acrimony towards the Father and his family; at worst, the children’s disclosures and comments suggest a deliberate and conscious attempt by [the mother] to sway the children towards her views and opinions.
45.There is little to suggest the children’s time with their Father should not be increased to ‘substantial and significant’ periods of time. [The father] presents as a competent, loving and caring parent. Little weight can be given to the children’s expressed reluctance to overnight time, as it appears their loyalty to their Mother overrides their individual need or wish. Court Orders for overnight time will remove the onus on the children to support one or other parent; and confirm they are not responsible for decision making. Although [the father] proposes a graduated increase in time, this is not considered necessary for the children given their ages. Nevertheless, a plan embraced by both parents is more likely to be supported and have better outcomes for the children.
46.There is little trust between the parents whose communication has been limited by the issuing of intervention orders. There is underlying conflict and resentment which if not addressed will likely have a significant impact on the children as they transition the two homes. Considering the tensions between the parents, it will assist the children to minimise the number of changeovers between the two households.
47.To that end, and provided there is no evidence to the contrary, a parenting plan which provides for substantial and significant time with the Father is recommended. An arrangement of each alternate weekend should be introduced including time during the week. Given the children tend to rely on their Father for homework support, they may benefit from more regular time with him so that each alternate weekend, say for three overnights plus one night during the week would be beneficial to ensure regular assistance.
48.However, block time say for five consecutive overnights a fortnight, may better suit the children as it minimises the number of transitions between the two households. A further consideration is for the children to spend time with their Father when their Mother is at work.
49.School holidays can be equally shared or arranged so that the children are with their Father while their mother is at work. It is recommended that Court Orders specify the time the children will spend with their Father on Christmas day, special occasions etc.
50.The parents can be assisted by attending mediation/counselling to address their parenting relationship and establish effective strategies for communication. They are urged to consider reducing the conflict as their children’s welfare will be at risk from ongoing unresolved conflict. [The mother] needs to be mindful and make [a] concerted effort not to involve the children in the parental disputes; and be mindful they will want to be loyal to both parents.
Basically, Ms R recommended in her second report that [X], [Y] and [Z] spend five nights a fortnight with their father.
The family consultant’s oral evidence
Early in the trial, counsel for the independent children’s lawyer told the court that:
a)since completing her report, Ms R had read the parties’ trial material;
b)based on that material, Ms R was then not opposed to a week about arrangement; and
c)the independent children’s lawyer had spoken to [X], [Y] and [Z] a few days earlier and their view was that they would like to spend more time with their mother than with their father.
An attempt was made by counsel jointly to obtain Ms R’s views informally in the light of the recent statement of the views of [X], [Y] and [Z]. However, that attempt did not succeed in resolving the matter.
Ms R was told in cross-examination that [X], [Y] and [Z] had recently expressed the view that they wished to spend more time with their mother than with their father. Ms R said that, if the court ordered week about, [X], [Y] and [Z] would adjust.
Ms R said, in effect, that the very poor communication between the parents would compromise a week about arrangement, as that arrangement requires a good level of cooperation in relation to homework, clothing, school notices and so on.
Ms R agreed that the views, particularly of the older two children, who are 14 and 12, needed to be taken into account. Ms R said that [X], [Y] and [Z] had a close affinity with their mother, which could be explained partly by the fact that the mother was their primary carer in their early years and partly by the fact that they are girls.
Ms R also said that [X], [Y] and [Z] really love both of their parents and get a lot of really positive things from each of them. She said that the father was a very committed parent and “went the extra mile” even when he had a broken leg.
Ms R said that some of the comments made by [X], [Y] and [Z] recently echoed their mother’s views, but their statements recorded in the first report did not appear to be influenced by the mother.
Ms R said that a week about arrangement could work, but a 9:5 arrangement would give [X], [Y] and [Z] a greater sense of stability in one household.
At the end of her cross examination, Ms R said that her recommendation continued to be that [X], [Y] and [Z] spend five nights a fortnight with their father. She said that her reasons for that recommendation were particularly that the parents did not seem to have been able to get beyond their negative views of one another and that the research suggested that, when people who had been in an equal shared care arrangement reach [X]’s age, they often wanted to move to living predominantly with one parent or the other.
Ms M’s evidence
Ms M was not cross-examined. Her reports overall indicated very positive relationships between [X], [Y], [Z] and their father.
The father’s anger
The mother alleged that the father was angry and violent for over ten years and isolated her from family outings. The mother gave a number of examples of these allegations, some of which are discussed below.
a. the father pulling [X] off the bed by her feet
The mother said that:
a)in September 2015, the father, in a rage, pulled [X] off the bed by her feet, so that she landed flat on her back;
b)the father hit [X] over and over while she was on the floor;
c)she and [X], [Y] and [Z] were all screaming; and
d)[X] struggled to walk to school that day as she had a sore back.
[X] said in her first interview with Ms R (paragraph 36 of the first family report) that the father sometimes hit us and recalled one occasion when the father pulled her off the bed by her legs. She also said:
a)it hurt;
b)she was not scared of her father except when he gets angry; and
c)she felt better since separation because we don’t get hit anymore (paragraph 40).
[Z] also mentioned in her interview for the first family report that the father had pulled [X] by the legs (paragraph 50).
It will be recalled that Ms R said in cross-examination that she did not consider that [X], [Y] and [Z] gave anything but their own views during the first interview.
In cross-examination by the mother’s counsel, it was put to the father that he tended to get angry, he could be abusive and he frightened [X], [Y] and [Z] (Tr. p.96, l.41-43). The father said that he did not accept that. He said that, towards the end of a relationship, things can happen that are not always the best (Tr. p.96, l.43-46.) He said that he had done several courses and understood how to put himself in the shoes of [X], [Y] and [Z] (Tr. p.97, l. 1-3). He said that he is a fairly controlled person (Tr. p.97, l.7).
When it was put to the father that he had not shown much control when he pulled a child off the bed on to her back, the father said that he acknowledged and accepted that that happened but said that it had been greatly exaggerated as well. He said that the incident had been misrepresented as he was intervening in an argument between [X] and her mother (Tr. p.97, l.10-15).
Unfortunately, notwithstanding that the father has done a number of courses dealing with parenting and anger management, and notwithstanding that he acknowledged and accepted that he had pulled [X] off the bed by her feet, he does not appear to have actually understood that intervening in an argument does not excuse or explain such violence. Rather, even in the context of a trial, the father was attempting to minimise his conduct and deflect blame.
b. the father saying the pets would have to go
The mother said that [X], [Y] and [Z] reported to her that, with the family home being sold, the father told them that they would not be able to get a nice house and their pets would have to go. The mother said that she reassured [X], [Y] and [Z] that she would find a home for them and the pets would be coming too.
The father did not deny this in his affidavit evidence. When it was put to him in cross-examination that he was angry that the family home was being sold and that he told [X], [Y] and [Z] that their pets would have to go (Tr. p108 – 112), the father had a great deal of difficulty answering the question. He said that he may have been vexed on the day of the auction because the time of the auction conflicted with a (hobby omitted) lesson. He said, moreover, that he had bought ducklings for [X], [Y] and [Z]. He said his view that [X], [Y] and [Z] would not be allowed to have pets was based on the fact that he was not allowed to have pets in the premises that he was renting.
In my view, the father saying that he was vexed is an attempt at a euphemism. The fact is, he was angry that the family home was being sold. He tried to make [X], [Y] and [Z] feel bad about the family home being sold, and he tried to make them feel negatively towards their mother because she had been the instigator of the sale. (At the trial, the father acknowledged that the sale of the former family home had been inevitable.)
Obviously, being told that their pets would have to go would be very distressing for any child. However, I consider that the father was so angry with the mother about the sale of the family home that he just did not care how his children would feel when he told them that their pets would have to go.
Again, the father tried to explain and excuse his conduct, saying that he thought it was a realistic statement, as he is not allowed to have pets in his rented premises. However, even if it is true that [X], [Y] and [Z] will not be able to keep their pets, a more child-focused parent would have been able to find a better way of explaining the situation to them. In any event, the mother is planning to move to (omitted) as she expects to be able to afford to buy a house in that area. Consequently, she and [X], [Y] and [Z] will be able to have pets.
It probably needs to be stated that anger management courses are not intended to help people deal with the happy times. They are intended to help people deal with the very stressful and upsetting times, so that the person’s feelings of stress, upset and, indeed, anger do not result in him or her lashing out in an angry and hurtful manner.
c. [X]'s Grade 6 graduation
The mother said that, on the night of [X]'s Grade 6 graduation, while the mother was styling [X]’s hair, the father had said:
you’re both fuckin animals, the both of you, look at you, you both fuckin disgrace, … I’m not going to your graduation, you can get fucked.
The mother said that she arranged for a neighbour to drive them to the graduation, only to find that the father had already arrived, and was behaving as if nothing had happened. The mother said that [X] was teary throughout the graduation. The mother said that the father would not allow her to call the neighbour to collect them, and the whole family had to walk home from the station which took 30 minutes.
The father did not address this issue in his affidavit evidence. However, in cross-examination, he denied saying the words alleged by the mother. He said that he went to the graduation separately from the mother and [X], [Y] and [Z]. He said he was ashamed to be with the mother because she had sent an abusive text message to the mother of [X]’s best friend. The father said that [X] was upset on the night of her graduation because of what the mother had done, not because of what he had done. The father conceded that he and the mother argued on the night of [X]'s Grade 6 graduation but said that he did not swear.
Having observed the father in the witness box, I did not find the father’s evidence about this incident to be persuasive. I found the mother’s evidence on this incident to be more plausible and to be more consistent than the father’s evidence with the other evidence in the proceeding. I accept the mother’s evidence in relation to this issue. I consider that the father has minimised his conduct on the evening of [X]'s Grade 6 graduation.
d. the mud pie incident
Following the father being attended by the CAT team, DHHS interviewed the mother, [Y] and [Z]. The DHHS notes record that [Z] told DHHS that:
My sister threw a mud ball at the window and [the father] threw her around.
The father told the court that he had launched an internal investigation into DHHS and intended to take them to VCAT. The father told the court that DHHS was incompetent and he did not:
accept anything that they would compile, given their conduct.
The father told the court that he had also launched an investigation into (omitted) Mental Health through the Mental Health Complaints Commissioner. He said that the internal investigation into DHHS and the investigation by the Mental Health Complaints Commissioner were complete. When asked whether he had been successful, he prevaricated and eventually said that there was a sticking point in that one agency could not look into another.
The court asked the father whether he was saying that DHHS had fabricated the statement that [Z] had said that her sister had thrown a mud ball at a window and the father had thrown her sister around. The father said that it was not a total fabrication but DHHS might have misinterpreted something.
When asked what was correct about the description of the incident, the father said that there was nothing correct about the description of that particular incident. When asked whether that meant that the father was saying that DHHS had totally fabricated the incident, the father said that he was not saying that, but the report had a lot of inconsistencies and inaccuracies. When asked what exactly was inaccurate in relation to DHHS’s description of this incident, the father said:
Yes. Well, I actually, I think, on previous occasions have denied that actual incident.[1]
[1] Tr. p.91, l.39-40
When asked again to say what was inaccurate in the incident as reported by DHHS, the father said:
The – the – the whole incident is inaccurate. The incident described is – is inaccurate.[2]
[2] Tr. p.91, l.45-46
When asked again whether the incident was a fabrication by DHHS, the father said, Yes, I think so. The following exchange then occurred:
You’re saying there was no mud ball?‑‑‑No. Yes. That’s what I’m saying. There’s – there’s ‑ ‑ ‑
There was no mud ball?‑‑‑Yes, I’m denying it.
And you did not swirl the children – hurl the children around – or one of them?‑‑‑Yes. I – I definitely deny the – the action of – of – of that – that swirling or grabbing the child, taking them off their feet. I deny it, yes, and I deny what is said there.
And you deny that you got very angry about something to do with mud?‑‑‑Yes, I deny that.[3]
[3] Tr. p.92, l.6-17
The father’s evidence about this incident is completely unconvincing. His choice of words is telling. To say that he denies the event rather than just saying what happened, or saying nothing like it happened, does not ring true. The father seemed determined to stick with a particular position, perhaps for the purposes of the other proceedings he has launched. The father’s inability to say what aspects of the incident were accurate and what were inaccurate, after saying that the incident was not totally fabricated, suggests that he did not want to tell the court his actual recollection of the events but wanted to maintain a position.
I consider that DHHS accurately recorded what [Z] told them and that she accurately reported to DHHS what had happened.
The children’s relationship with their father
The mother conceded that [X], [Y] and [Z] are well-adjusted, happy and reaching their developmental milestones. The mother acknowledged in cross-examination that the time spent by [X], [Y] and [Z] is going well. She acknowledged that [X], [Y] and [Z] love their father and enjoy spending time with him, and that he is a committed father who takes an interest in what they are doing. The mother acknowledged that the father would be a good father whether the arrangement was 7:7 or 9:5. However, the mother did maintain that the father was prone to anger, and that he might be less inclined to lash out if he had less time with the children.
Ms R said that [X], [Y] and [Z] would adjust if the court decided that it was in their best interests to spend seven nights a fortnight with their father. Ms R said that [X], [Y] and [Z] had an affinity with both of their parents, but are perhaps closer to their mother.
The paternal grandmother
The mother maintained that [X], [Y] and [Z] told her that the father had frequently had loud and angry arguments in their presence with his mother, with whom he has been living. The father objected to this evidence on the ground that it was hearsay. However, hearsay is admissible in parenting matters.
The DHHS records (exhibit 1) support the mother’s claim that the paternal grandmother is loud and argumentative. She argued with DHHS staff, and interviews had to be suspended in consequence.
All in all, I consider that it is likely that the father and the paternal grandmother argue loudly in the presence or hearing of [X], [Y] and [Z]. This would undoubtedly be very uncomfortable for them, if not frightening.
Parental communication
To this point, post separation, the parents have had very poor communication. However, the fact that they were able to reach agreement on so many issues in the context of the trial, albeit with assistance from counsel for each parent and the independent children’s lawyer, gives some grounds for hope that they will be able to communicate with each other reasonably well in the future.
Family outings
The mother maintained that the father would not let her attend family outings. She said that, when the father took [X], [Y] and [Z] to the beach, bike riding, or such like, the mother would have to stay at home. The father denied that he did not let the mother attend. I found the mother’s evidence on this issue to be credible. I accept her evidence that she would prepare food and so on for the father and children to take on their outings but would stay at home to do housework because the father did not want her to join them.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I will address the relevant considerations in order.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
It is obviously in the best interests of [X], [Y] and [Z] to have a meaningful relationship with both of their parents. There was no dispute about this.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There was no suggestion that [X], [Y] and [Z] are at any risk in their mother’s care. The father, however, is prone to anger, and has hurt at least [X] in the past. It is necessary to minimise the chance of this kind of thing happening in the future.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Counsel for the independent children’s lawyer said from the bar table that the independent children’s lawyer met [X], [Y] and [Z] shortly before the trial and that they said that they really enjoy spending time with their father but that they would like to spend more time with their mother than with their father. The independent children’s lawyer did not put this information on affidavit. However, it was stated a number of times before counsel for the father took issue with it. By that time, in my view, the evidence was in. I accept that [X], [Y] and [Z] have recently expressed the view that they would like to spend more time with their mother than with their father.
The father suggested that the views of [X], [Y] and [Z] may have been influenced by their mother. I accept that it is possible that they have been influenced recently by their mother. Nevertheless, I consider that their views as stated to the independent children’s lawyer are genuinely held. Their statements to Ms R indicated that they still loved and wanted to see their father, even though he had engaged in family violence.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
[X], [Y] and [Z] have a good relationship with each of their parents, though perhaps a somewhat better relationship with their mother. Their relationship with their paternal grandmother is less than ideal.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Both parents have taken every opportunity to participate in making decisions about [X], [Y] and [Z], and to spend time with them and communicate with them.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother has maintained [X], [Y] and [Z] since separation. She acknowledged in cross-examination that she had not applied for child support. The father said, and I accept, that he had paid for some runners and for some extracurricular activities. On any view, this is minimal.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
It is not proposed to separate [X], [Y] and [Z] from anyone. The proposals of both parents would involve an increase in the time that [X], [Y] and [Z] will spend with their father. This will be to their benefit.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parents both expect to be living in the (omitted) area. It is not expected that there will be any particular expense or difficulty in [X], [Y] and [Z] spending time with both of their parents.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The parents are both well able to provide for the needs of [X], [Y] and [Z]. The father has taken a particular interest in assisting them with their homework and school projects. It is common ground that he does this well.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The mother, and therefore [X], [Y] and [Z], have (nationality omitted) heritage. The mother is obviously able to help [X], [Y] and [Z] connect with that heritage.
The father said in his affidavit that he intends to learn (language omitted), to assist [X], [Y] and [Z] to access their (nationality omitted) culture. The father did not say what inquiries he had made about learning (language omitted), or how or where he is going to do it. Given that the parents lived together for 23 years without the father learning (language omitted), it seems most unlikely that he will do it now.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parents have demonstrated an admirable attitude to the responsibilities of parenthood.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Family violence has been discussed elsewhere.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
The mother left the family home in March 2016 and went to a women’s refuge. On 18 April 2016, she obtained an interim, ex parte intervention order against the father which protected her and [X], [Y] and [Z]. The matters alleged in the application are discussed elsewhere in these reasons.
The father contested the intervention order at a final hearing. However, on legal advice, he ultimately consented to a final intervention order without admissions on 27 March 2017. It protected the mother, [X], [Y] and [Z] and lasted until 26 March 2018.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It would be preferable to make the order that would be the least likely to lead to the institution of further proceedings. However, it is not apparent what that order will be.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The relevant facts and circumstances are discussed elsewhere in these reasons.
Equal shared parental responsibility
Section 61DA of the Act provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The parents and the independent children’s lawyer agreed that the parents should have equal shared parental responsibility for [X], [Y] and [Z]. That is clearly in their best interests.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of s.65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsections (1) to (5) inclusive of s.65DAA provide as follows:
Equal time
(1)… if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend time equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity – the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In my view, it is not in the best interests of [X], [Y] and [Z] that they spend equal time with each of their parents. I consider that the father is prone to anger, and the additional stress of caring for [X], [Y] and [Z] for an extra two nights a fortnight would make it more likely that the father would react angrily towards them, as he has done in the past.
I also note that the poor, though improving, communication between the parents would make it difficult for an equal care arrangement to work satisfactorily for the children.
I am bolstered in this conclusion by the views recently expressed by [X], [Y] and [Z] to the effect that they would like to spend more time with their mother than with their father. I am also bolstered in this conclusion by Ms R’s evidence that people of [X]’s age who have been in an equal care arrangement, often start at her age to ask for more time with one parent or the other.
I acknowledge that, overall the father is a good and committed father. However, in view particularly of his angry outbursts, I consider that the mother’s proposal, which is supported by the independent children’s lawyer and accords with the recommendations of Ms R, is in the best interests of [X], [Y] and [Z].
There will be orders in terms of the mother’s proposal.
Property
The legislation
Section 90SM of the Act gives the court power to alter the interests of the parties to a de facto relationship in the property of the parties to that de facto relationship. Sub-section 90SM(3) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 90SM(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made for the alteration of the interests of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3)) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
The matters to be taken into account under s.90SF(3) of the Act are as follows:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person — the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(o)the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i)a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii)a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p)the terms of any order or declaration made, or proposed to be made, under this Part VIII in relation to:
(i)a party to the subject de facto relationship; or
(ii)a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s)the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(q)the terms of any financial agreement that is binding on a party to the subject de facto relationship.
The approach to applications under s.90SM
In Stanford v Stanford (2012) 247 CLR 108; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; (2012) 293 ALR 70; [2012] HCA 52, the High Court explained the proper approach to an application under s.79, and s.90SM of the Act as follows:
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. … The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order. (emphasis added)
38.Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. … (footnotes omitted)
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered. (emphasis added)(footnotes omitted)
40.Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. (emphasis added)(footnotes omitted)
…
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). (emphasis added)(footnotes omitted)
Stanford requires the following matters to be determined in applications brought under s.90SM of the Act:
a)whether the parties have separated;
b)the assets and liabilities of each party;
c)the contributions of each party;
d)the future needs of each party;
e)bearing in mind all of the foregoing matters, whether it is just and equitable to make any orders altering the interests of the parties in their property; and
f)what orders, if any, are just and equitable in all the circumstances of the case.
Stanford does not require these matters to be addressed in any particular order. In most cases, it would seem rational to consider them in the order set out above. It does not seem rational to determine whether it is just and equitable to make an order altering the parties’ interests in their property without the other matters mentioned above having been previously determined. That seems to be clear from the opening words of s.90SM(4) of the Act, which are that:
In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account [the various matters set out in s.90SM(4)] … .
The approach outlined above is consistent with the decision of the Full Court of the Family Court in Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387; [2013] FamCAFC 116. I note that in that case, the Full Court said at [89]:
In our view, it will be less likely that the separate issues arising under s 79(2) and (4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.
The proposals of the parties
The husband proposed that the proceeds of the former matrimonial home be divided on an equal basis.
The wife proposed that the proceeds of the former matrimonial home be divided 60% to her and 40% to the husband.
Whether the parties have separated
The parties agreed that they had separated.
The assets and liabilities
The parties did not have any disputes about their assets and liabilities.
The parties agreed that their joint assets and their values at the time of trial were as follows:
Joint assets
Value
The proceeds of Property A
$860,000
Total joint assets
$860,000
The parties agreed that their joint liabilities at the time of trial were as follows:
Joint liabilities
Value
(omitted) Bank mortgage on Property A
$16,000
Real Estate Agent’s costs and commissions
$11,960
Conveyancing costs
$1,500
Total joint liabilities
$29,460
Total joint assets less joint liabilities
$830,540
The parties agreed that the wife’s individual assets at the time of trial were as follows:
Wife’s assets
Value
Bank account
$20
Wife’s total assets
$20
Wife’s superannuation
$41,000
Wife’s total assets plus superannuation
$41,020
The parties agreed that the wife’s individual liabilities at the time of trial were as follows:
Wife’s liabilities
Value
(omitted) Bank personal loan
$13,000
Wife’s total liabilities
$13,000
Wife’s total assets plus superannuation less liabilities
$28,020
The wife also included in her financial statement filed on 18 February 2018, that she had household contents worth $2,000. However, this issue was not raised at the final hearing. Therefore, I disregard it.
The parties agreed that the husband’s individual assets at the time of trial were as follows:
Husband’s Assets
Value
Bank account
$700
Husband’s total assets
$700
Husband’s superannuation
$66,439
Husband’s total assets plus superannuation
$67,139
The parties agreed that the husband had no individual liabilities at the time of trial.
The wife’s assets plus superannuation less liabilities have an agreed value of $28,020. The husband’s assets plus superannuation less liabilities have an agreed value of $67,139. The parties’ joint assets less their joint liabilities has an agreed value of $830,540. The combined total of their assets is therefore $925,699.
Contributions
a. Initial contributions
The parties agreed that the wife brought nothing of tangible value to the relationship but that the husband had $10,000 which was put towards the former family home.
b. Contributions during the marriage
The parties agreed that the wife received a $16,000 redundancy payment in 2001, of which $11,000 was used to reduce the mortgage on the former family home.
The parties also agreed that the husband received an inheritance of $50,000 in 2004 and another of $30,000 in 2006. The parties agreed that the total amount of $80,000 inherited by the husband was used to reduce the mortgage over the former family home.
The parties did not dispute that, until 2011, the wife was the primary carer of the children while the father worked.
However, the parties were in dispute about who was the primary carer of the children from 2011, when the husband stopped working and the wife started working part time, until separation in 2016. The husband maintained that he was the primary carer during that period and made greater homemaker contributions. The wife maintained that she continued to be the primary carer, and the principal homemaker, even after she returned to work part-time. She maintained that the husband left the housework and cooking for her to do, even though he was at home.
In 2011, [Z] would have been about three years old, [Y] would have been about five years old and [X] about seven years old. I consider that, at least until the younger ones started school, the father would have had a lot of hands on child care to do. I also accept the wife’s evidence that the husband left a lot of the housework and child care for her, before she left for work and once she got home from work. I found her evidence to be very credible in this regard.
Overall, I consider that, in and after 2011, the wife made a greater contribution through working outside the home, as well as doing a good deal of childcare and homemaker work.
Obviously, however, the husband made a very significant financial contribution with his two inheritances, which far outweigh the wife’s redundancy payment.
c. Contributions post separation
Post separation, the mother has had by far the bulk of the child care.
The parties were in dispute about who paid the mortgage post separation. Both claimed to have paid it. Ultimately, it seems to have been accepted that they both did pay the mortgage post separation, which resulted in a reduction in the joint debt. The mortgage repayments were modest, at about $64 per week.
The wife had the benefit of living in the former family home post separation, although she was also accommodating the children there. The husband was paying rent of $330 per week.
The s.90SM(4)(d), (e), (f) and (g) and the s.90SF(3) factors
The parties agreed that they were both in employment but had a low income earning capacity, the husband about $47,000 per year and the wife about $21,000 per year.
Otherwise, the summary the parties provided to the court only indicated that their future needs were associated with their proposals for care of the children. As it has been determined that the children will live predominantly with the wife, this factor favours her.
The father agreed in the witness box to pay half of the children’s educational expenses. Although the wife has not applied for child support, it could be expected that the husband would pay the amount of any child support that was assessed, as he is an employee and it would be taken from his wages.
The wife emphasised that the husband earns about twice as much as she does, that he has about 50% more superannuation that she does. The wife also emphasised that she will have the bulk of the child care.
The wife is 45 years old. The husband is 47 years old. Nothing was put to the court about their health. It seems to be accepted that they will both be able to continue working with about their present earnings.
There was no suggestion that either party had anything other than the usual commitments. It was not suggested that either party had any responsibility to support anyone other than their children. It was not suggested that either party was eligible for a pension.
In all the circumstances, a modest standard of living for each party would be reasonable. It is clear that any resolution of this matter will allow all creditors to be paid in full.
It was not suggested that either party has any financial resources other than their earnings, or that either party had contributed to the other’s income, earning capacity or financial resources.
The de facto relationship lasted 23 years. It is not suggested that it affected either party’s income earning potential. It was not suggested that either party is cohabiting with any person, except that the husband has been living with his mother.
The other matters in s.90SF of the Act are not relevant.
Whether it is just and equitable to alter the parties’ property interests
The husband submitted that there should be no alteration of the parties’ property interests, in the sense that each of them should have 50% of the proceeds of sale of the former family home. The wife submitted that there should be an alteration of property interests, to the extent of her receiving 60% of the proceeds of the former family home.
In view of paragraph 42 of Stanford, the fact that the parties are no longer living in a marital relationship and the various matters set out above in relation to contributions and future needs, I consider that it would be just and equitable to alter the parties’ property interests in this case.
What order is just and equitable?
In my view, it would be just and equitable for the wife to receive 57% of the proceeds of sale of the former family home. This figure balances the various circumstances of this matter, including the wife’s lower earning capacity, her greater need because of her greater amount of care of the children, and her greater non-financial contribution during the course of the relationship, and the husband’s greater financial contribution in terms of his inheritances.
There will be orders accordingly.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 19 April 2018
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Fiduciary Duty
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Remedies
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Damages
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Injunction
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