Baglio & Baglio
[2013] FamCA 105
FAMILY COURT OF AUSTRALIA
| BAGLIO & BAGLIO | [2013] FamCA 105 |
| FAMILY LAW – CHILDREN – where the mother asserts that the father poses an unacceptable risk of harm to the parties’ child – where the father has not spent any time with the child in over two years – where the father has a significant history of illicit drug dependence and abuse – where the mother claims the father physically assaulted the parties’ child – whether the father poses an unacceptable risk of harm to the child – where the father has not used drugs in four years – where there is insufficient evidence to find that the father physically assaulted the parties’ child – where the father does not pose an unacceptable risk of harm to the child provided he continues to abstain from consuming illicit drugs – whether the father should spend time with the child – where there is the potential for the child to benefit from a meaningful relationship with her father – where orders made for graduated time between the father and the child leading, ultimately, to overnight time – where orders for time contingent upon the father undergoing drug testing at the request of the Independent Children’s Lawyer and the results of those tests being clear of specified substances. FAMILY LAW – PROPERTY – Where the wife brought an unencumbered property into the relationship – where that property now represents the vast bulk of the pool – where the husband made significant direct financial contributions during the relationship – where the parties acquired several investment properties during the marriage – where those properties had to be sold post-separation and where the parties have incurred shortfalls as a result – where the husband concedes he did not apply rental proceeds received by him to mortgage repayments or otherwise make mortgage repayments post-separation – consideration of Stanford v Stanford (2012) 293 ALR 70 – whether husband’s conduct post-separation should be taken into account by way of a disproportionate increase in the wife’s contributions – where justice and equity requires a recognition of the effect of the husband’s conduct – where assessment of wife’s contributions increased disproportionately – where wife will have primary care of the parties’ young child – where the husband continues to receive a significant disability pension each month – where the wife is presently unemployed and in receipt of government benefits – where contributions assessed at 72.5:27.5 per cent in favour of the wife. |
| Evidence Act 1995 (Cth) Family Law Rules 2004 (Cth). |
| AIF v AMS (1999) 199 CLR 160 |
| APPLICANT: | Mr Baglio |
| RESPONDENT: | Ms Baglio |
| INDEPENDENT CHILDREN’S LAWYER: | DK Law |
| FILE NUMBER: | BRC | 7965 | of | 2009 |
| DATE DELIVERED: | 27 February 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 3, 4 and 5 September 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr James |
| SOLICITOR FOR THE APPLICANT: | Buchanan Legal |
| SOLICITOR FOR THE RESPONDENT: | Mr Cooper (solicitor) |
| SOLICITOR FOR THE RESPONDENT: | Charles Cooper Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER | Mr Linklater-Steele |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | DK Law |
Orders
PARENTING
IT IS ORDERED THAT
Parental Responsibility
It be declared that the presumption of equal shared parental responsibility is rebutted in the best interests of M born … April 2007 (“the child”)
The mother shall have, to the exclusion of the father, parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of the child, save that the mother shall, prior to making the sole ultimate decision about any such issue:
a)Use her best endeavours to advise the father in writing of the decision intended to be made;
b)Seek the father’s written response in relation thereto;
c)Consider, by reference to the best interests of the child, any such response prior to making any such decision;
d)Advise the father in writing as soon as reasonably practicable of her ultimate decision.
The mother shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the child whilst the child is in her care.
The father shall have sole parental responsibility for decisions regarding the day-to-day care, welfare and development of the child whilst the child is in his care.
Live With
The child shall live with the mother.
Time
Compliance with the orders for time between the father and the child be supervised pursuant to s 65L(1)(a) of the Act in such manner as the supervising Family Consultant shall deem fit for a period of not less than eight (8) months, with such Order to take effect as soon as practicable.
The child shall spend time with the father as agreed or, failing agreement, as follows:
a)For a period of two months from the date of these Orders, supervised by a Family Consultant pursuant to the s 65L Order contained in paragraph 6 of these Orders.
b)Thereafter, supervised by a supervisor agreed to in writing by the parties or, failing agreement, Ms R as follows:
i)One hour one day per week for four weeks;
ii)Thereafter, two hours one day per week for two months;
iii)Thereafter, four hours one day per week two months;
iv)Thereafter, five hours one day per week for four weeks.
c)Thereafter, from 9:00am until 5:00pm Saturday each alternate week for a period of two months.
d)Thereafter, from 9:00am until 5:00pm each alternate Saturday and Sunday for a period of four weeks.
e)Thereafter, from 9:00am Saturday until 5:00pm Sunday each alternate week for a period of four weeks.
f)Thereafter, from after school on Friday to before school Monday each alternate week.
Holiday Time/Special Occasions
Upon the commencement of time in accordance with paragraph 7(e), the father shall spend time with the child during the gazetted school holiday periods as follows:
a)For the first half of the March/April and September/October holidays each even year and the second half in each odd year;
b)For the first half of the June/July holidays each odd year and the second half in even odd year;
c)For the first half of the Christmas/New Year school holidays every odd year and the second half in every even year;
d)From 5:00pm Christmas Eve until 3:00pm Christmas Day every odd year and from 3:00pm Christmas Day until 1:00pm Boxing Day every even year.
Upon the commencement of time in accordance with paragraph 7(e), in the event that the child is not otherwise spending time with the mother, the child shall spend time with the mother:
a)On the child’s birthday as follows:
i)In even numbered years from after school on the day before the child’s birthday until commencement of school on their birthday;
ii)In odd numbered years from after school on the child’s birthday until the commencement of school on the day after their birthday;
iii)If the child’s birthday falls on a weekend: from 3:00pm until 6:00pm on the birthday.
b)On the mother’s birthday:
i)If it falls on a weekday: from after school until 6:00pm; and
ii)If it falls on a weekend: from 9:00am until 5:00pm.
c)On Mother’s Day from 9:00am until 5:00pm.
Upon the commencement of time in accordance with paragraph 7(e), in the event that the child is not otherwise spending time with the father, the child shall spend time with the father:
a)On the child’s birthday as follows:
i)In odd numbered years from after school on the day before the child’s birthday until commencement of school on their birthday;
ii)In even numbered years from after school on the child’s birthday until the commencement of school on the day after their birthday;
iii)If the child’s birthday falls on a weekend: from 12:00 midday until 3:00pm on the birthday.
b)On the father’s birthday:
i)If it falls on a weekday: from after school until 6:00pm; and
ii)If it falls on a weekend: from 9:00am until 5:00pm.
c)On Father’s Day from 9:00am until 5:00pm.
Drug Testing
Time between the father and the child in accordance with the preceding paragraphs is contingent upon the father:
a)Undergoing urinalysis drug testing not more than once every three months, for a period of twelve (12) months from the date of these Orders, at a date and time to be nominated by the Independent Children’s Lawyers in writing with such written notice being provided to the father at least two business days prior to the nominated date;
b)Undergoing hair follicle testing not more than once every six months, for a period of twelve (12) months from the date of these Orders, at a date and time to be nominated by the Independent Children’s Lawyers in writing with such written notice being provided to the father at least two business days prior to the nominated date;
c)The father providing copies of the test results to the Independent Children’s Lawyer within 48 hours of his receipt of same; and,
d)The results of all urinalysis and hair follicle tests being clear of opiates, benzodiazepines, narcotics, codeine and amphetamines, save as might result from medication prescribed by a medical practitioner in respect of which the father provides to the Independent Children’s Lawyer a copy of any relevant prescription.
In the event that any of the tests conducted in accordance with the preceding paragraph return a positive result for opiates, benzodiazepines, narcotics, codeine or amphetamines, save as has resulted from a medication prescribed by a medical practitioner in respect of which the father provides to the Independent Children’s Lawyer a copy of any relevant prescription, time between the child and the father in accordance with paragraphs 6 – 10 of these Orders shall cease.
All costs associated with undergoing the tests referred to in paragraph 11 shall be borne solely by the father.
The Independent Children’s Lawyer be discharged at the conclusion of the timeframe for drug testing set out in paragraph 11.
Changeover
Changeover for unsupervised time between the father and the child shall occur at the child’s school.
Communication
Upon the commencement of time in accordance with paragraph 7(b)(i) of these Orders, the father shall be at liberty to communicate with the child by telephone each Tuesday and Thursday between 5:00pm and 6:00pm.
When the child is spending holiday time with the father in accordance with paragraph 8, the mother shall be at liberty to communicate with the child by telephone each Tuesday and Thursday between 5:00pm and 6:00pm.
Both parents shall facilitate telephone communication between the child and the other parent at any reasonable time requested by the child.
Provision of Information
Each party shall do all such things and sign all such documents as may be necessary or required to:
a)Authorise the other party to communicate with, and receive communication from, any doctor or health professional (of whatever type), whom the child consults, failing which this Order shall, of itself, constitute such authority;
b)Speak to, and receive oral or written communication from, any school, childcare centre or other educational institution, attended by the child, after payment of any necessary fee, failing which this Order shall, of itself, constitute such authority;
c)Keep the other party appraised of telephone contact number and other electronic communication address or addresses for the purpose of communication with the child (such as Skype and email), with any changes to same being notified to the other party in writing within 48 hours of same occurring;
d)Notify the other party as soon as reasonably practicable should the child suffer any medical emergency, serious illness, or other significant issue affecting the child’s health or welfare, whilst in their care.
In the event that either party fails or refuses to do any such thing or provide any such document or authority, this Order shall, of itself, be sufficient authority for each and all of the matters referred to in paragraph 19 of these Orders to occur.
SETTLEMENT OF PROPERTY
As and by way of settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) IT IS ORDERED THAT:
The following property vest absolutely in the mother to the exclusion of any right, title, claim or interest therein by the father:
a)Real property located at L Street, Suburb K QLD 4034 (being Lot … on SP … in the County of …, Parish of …), which for the purposes of these Orders shall be deemed to have a value of $605,000;
b)Chattels (including furniture and jewellery) currently in her possession and bank accounts currently in her name, which for the purposes of these Orders shall be deemed to have a value of $5,500;
c)Her superannuation interest in Sunsuper, totalling $1425.06;
d)The motor vehicle currently in her possession, which for the purposes of these Orders shall be deemed to have a value of $9,200; and,
e)$90,000 added back in respect of legal fees.
The following property vest absolutely in the father to the exclusion of any right, title, claim or interest therein by the mother:
a)Custom-made Harley Davidson, which for the purposes of these Orders shall be deemed to have a value of $50,000;
b)2007 Nissan … motor vehicle registration …, which for the purposes of these Orders shall be deemed to have a value of $19,000;
c)Any and all shares in D Pty Ltd and E Pty Ltd, which for the purposes of these Orders shall be deemed to have a value of $nil and $500 respectively;
d)Chattels (including furniture) currently in his possession and bank accounts currently in his name, which for the purposes of these Orders shall be deemed to have a value of $5,000.
The mother shall do all such things, sign all such documents and pay all necessary fees as may be required to refinance, or otherwise assume sole responsibility as between the mother and the father for, and to indemnify the father in respect of:
a)ANZ Credit Card account number …171, which for the purposes of these Orders shall be deemed to have a balance of $31,984.84;
b)AMP Mortgage with Line of Credit, which for the purposes of these Orders shall be deemed to have a balance of $100,000;
c)ANZ Mortgage account number …557, which for the purposes of these Orders shall be deemed to have a value of $33,516.78;
d)ANZ Mortgage account number …522, which for the purposes of these Orders shall be deemed to have a balance of $14,553.07; and,
e)ANZ account number …579, which for the purposes of these Orders shall be deemed to have a balance of $1,698.71.
The father shall do all such things, sign all such documents and pay all necessary fees as may be required to refinance, or otherwise assume sole responsibility as between the father and the mother for, and to indemnify the mother in respect of:
a)ANZ Visa Credit Card, which for the purposes of these Orders shall be deemed to have a balance of $2,000.
The mother raise and pay to the father within 42 days of the date of these Orders the sum of $93,000.
In the event that the mother does not raise and pay the sum of $93,000 pursuant to the preceding paragraph within the timeframe or, within that timeframe advises the father in writing that she cannot or will not pay the said sum:
a)Paragraphs 21(a) and 23(c), (d) and (e) of these Orders be each discharged;
b)The property at L Street, Suburb K be listed for sale at a price and in a manner agreed upon in writing between the parties or, failing agreement, as recommended in each case by a licensed real estate agent nominated by the President of the Real Estate Institute of Queensland;
c)After the payment of the reasonable costs of sale, the proceeds be used to discharge the indebtedness of the parties to the ANZ Bank in respect of the shortfalls in the mortgages referred to at paragraphs 23(c), (d) and (e) of these Orders; and,
d)The balance be paid to the trust account of the solicitors for the mother to the credit of the father and mother (“the joint amount”).
From “the joint amount” there be paid to each of the parties such amount as is necessary to effect a distribution between them in the proportions 72.5 per cent to the mother and 27.5 per cent to the father, consequent upon an account being taken of the values and balances of the assets and liabilities set out in paragraphs 21, 22, 23 and 24.
Save as otherwise provided for in these orders, any and all property currently in the possession of each of the parties vest absolutely in them.
Child Support Departure
The application for a Child Support Departure Order filed by the mother be dismissed.
Miscellaneous
All extant applications be otherwise dismissed and removed from the list of cases awaiting finalisation.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same after the time for appeal has lapsed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baglio & Baglio has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC7965/2009
| Mr Baglio |
Applicant
And
| Ms Baglio |
Respondent
REASONS FOR JUDGMENT
The parents of M (“the child”) (born in April 2007) had a short and dysfunctional relationship. They brought to that relationship individual backgrounds that were significantly problematical. The father[1] has a history of criminal behaviour, including violent behaviour, and drug addiction. The mother has a history of mental illness (including, relevantly, obsessive compulsive disorder).
[1] For consistency and ease of reference, I will refer to the parties as the “mother” and “father” throughout these Reasons.
The child, who is now almost six, has not seen her father since the parties separated finally in March 2010 – a period of nearly three years. She was then not quite three.
The mother says that situation should remain. She contends for orders that would see no face-to-face time between the child and her father. The father’s position is that he should spend time with the child, but commencing gradually. In that respect, his position largely mirrors that of the Independent Children's Lawyer (“ICL”). The ICL contends that, initially, there should be some limited time, monitored by way of a s 65L order, leading to graduated supervised time with a review by the reporting single expert Mr F and, then, the Court.
The mother’s position is centred upon an assertion that the Court will make findings that the father has been physically violent to the mother and to the child (the latter on one occasion). Although not specifically articulated, the alternative contention would appear to be that, absent such findings, the Court would find that the father presents an unacceptable risk of physical or emotional harm to the child (see, B v B (1988) FLC 91-978 and M v M (1988) FLC 91-979)
The ICL and the father contend that there should be no finding of unacceptable risk. In particular, it is asserted that the evidence supports a finding that any such unacceptable conduct engaged in by the father occurred when he was addicted to narcotics or other drugs. There is strong evidence, it is contended, that the father has successfully remained free of drugs for some years and that, during that time, there would not be findings made of any conduct that might sustain an ultimate finding of unacceptable risk.
Further, each of the father and the ICL contend that statements made by the child (for example, “Daddy is a bad man”; “Daddy punched me as a baby”) are not the expression of the child’s memories but, rather, are statements inculcated in her by the mother. It is contended that this is supported by the lack of detail in what the child has said; that she is purporting to speak of incidents which allegedly occurred when she was not yet three years of age; and, the lack of other corroboration (for example, medical evidence, references to counselling and the like). As will be seen, those assertions can also be seen as supported by the mother’s own account.
The parties also seek orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The existing legal and equitable interests of the parties are largely agreed although there are several contentious items of property. The primary issue in respect of the property proceedings is how conduct alleged on the part of the father post-separation regarding the parties’ four investment properties should be treated.
That factor is also said to impact upon the issue of contributions. The parties are significantly apart on that issue as, too, s 79(4)(e). Ultimately, the father contends he should receive 55 per cent of the available property; the mother contends he should receive 10 per cent.
Proceedings For Parenting Orders
Relevant Principles and Considerations?
Best interests are to be determined by reference to the considerations mandated in Part VII of the Act, which are to be examined within the stated Objects and Principles. I do not propose to repeat here those Principles; I am cognizant of the legislative provisions and the Full Court decisions which have interpreted them. I have attempted to set out my understanding of those principles in Cowley & Mendoza (2010) 43 Fam LR 436 (“Cowley”) and in Hardie & Capris [2010] FamCA 1046 (“Hardie & Capris”). I make it clear that I rely here upon my understanding of those principles as outlined in those cases.
I repeat in particular, what I said at paragraphs [38] – [40] in Cowley: findings need to be made which inform other aspects of the process upon which the Court must embark, including the power to make parenting orders in circumstances where s 61DA applies.
In that respect, I cited in Cowley a passage from the Full Court decision in Starr & Duggan [2009] FamCAFC 115 where the Full Court, in referring to Taylor & Barker (2007) 37 Fam LR 461 and Sealey & Archer [2008] FamCAFC 142, said that (at [38]) “…the legislation does not mandate consideration of the relevant sections in any particular order…” (although the Court went on to suggest a “logical approach”).
Findings as to best interests inform a number of different, but related, aspects of the process: the rebuttal of the presumption of equal shared parental responsibility (s 61DA(4)); informing decisions relevant to s 65DAA(1)(a) or s 65DAA(2)(c); the application of the Objects and Principles of Part VII; as well as being the paramount consideration in making a particular parenting order (s 60CA)).
Although best interests plays multiple roles within Part VII, the Act mandates but one means of determining best interests in the particular circumstances applicable to the particular child/children the subject of the proceedings, namely an analysis of those considerations set out in s 60CC of the Act (see, for example, Donnell & Dovey (2010) 42 Fam LR 559 at [103]).
By way of corollary, the assessment of best interests is to be conducted within the statutory objective of maximising parental involvement consistent with that assessment. Ascertaining best interests by reference to the Act’s mandatory signposts must embrace the fact that “…[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … Best interests are values, not facts” (CDJ v VAJ (1998) 197 CLR 172 at 219).
Plainly enough, a major issue in these proceedings is the interrelationship between the two Primary Considerations: to what extent and in what form can the child benefit from a relationship which is meaningful to her and how should any such benefit be balanced against any risk of harm that might be assessed to her by any such orders?
It might be said that the child is too young to express “views” in the sense of any such expressions being either effectively determinative of, or highly influential in, orders in her own best interests. Yet, the child’s voice should be heard in these proceedings, and is, via a report prepared by Mr F. Her views need to be assessed by reason of the assertions in respect of them earlier identified.
The issues pertaining to the parties’ pasts impact upon other Considerations: the nature of the relationship the child has with each of her parents; the capacity of each parent; the attitude to the child and the responsibilities of parenthood; and, of course, family violence and any family violence orders. (These proceedings were instituted prior to 7 June 2012 and, consequently, the most recent amendments to Part VII do not apply).
In addition, a crucial issue centres upon “the willingness and ability of [the mother] to facilitate, and encourage, a close and continuing relationship between the child and the other parent.” The mother makes no secret of the fact that she is implacably opposed to the child spending time with the father and has not, and will not, encourage such a relationship; she contends that relationship is harmful to the child and exposes her to the risk of harm.
The factual matrix within which the decision as to what orders are in the child’s best interests must be made is marked out by a number of facts about which there is no dispute. They can be broadly outlined as follows.
The Non-Contentious Facts
The parties married in 2005, separated for several months in 2009 and finally separated in March 2010 when the child was not quite three.
The father has been charged with numerous criminal offences in the United States (from where he originates) from 1990 to 2007. Most are drug offences. There are offences of carrying a concealed firearm in a vehicle and carrying a loaded firearm in a public place. A charge of possession of a narcotic resulted in a three year jail sentence of which 210 days was served in 2004. The father left America at a time when he was on probation and there are three arrest warrants for his arrest as a result (see, annexures “AJB-8” and “AJB-13” to the mother’s affidavit filed 22 February 2012).
He came to Australia on a tourist visa. The mother initially supported his application for permanent residence but, later, withdrew that support. The evidence in respect of his current position regarding immigration is unsatisfactory. It appears to be common ground that the father’s application to remain in this country has been rejected on character grounds. That determination is subject to (I gather) administrative review. The father says that if there are no orders made for face-to-face time as the mother contends, he will not be successful in remaining in this country. What is less clear is what happens in respect of his immigration status if an order such as that for which he contends is made.
There have been earlier complaints of family violence made by previous partners and previous orders made in that respect in the United States. The father accepts that a least one of those orders required him to participate in a “Batterers Intervention Programme”. Within the instant relationship, the father pleaded guilty to assaulting the mother in 2009 and was fined with no conviction being recorded.
The father was addicted to illegal substances (initially, heroin and, later, cocaine and amphetamines) for a considerable period of time. He says he got “clean” towards the end of 2006, however the father was later charged in 2007 with possession of drug paraphernalia and a “controlled substance” in the United States. According to the father, the charges arose as a result of the Police locating a “baggie” in his car but he maintains the “baggie” did not contain any drugs. Contrary to that assertion, the father’s criminal history reveals that in February 2007 he was charged with possession of a “controlled substance” together with “possession of controlled substance paraphernalia” and he pleaded guilty to both charges. I do not accept that the father has been “clean” since the end of 2006.
Further, the father claims he has not used opiates since arriving in Australia. He says that whilst he was “tempted” in 2008 and bought drugs, he did not use them. The mother says he told her he had used. He denies this. For the reasons given below, I do not accept that the father did not use the drugs he purchased in 2008.
The mother’s capacity to parent is, on the father’s account to Mr F, uncontroversial; he said to Mr F that “I think she is a great Mum and very attentive”.
There has been no communication between the parties in any effective form since separation almost 3 years ago. The father told Mr F: “I feel the Court should get us to have communication …”. Quite how the Court is to achieve what the former life partners cannot achieve for themselves is not explained.
There is no doubt that the mother has involved the child in the adult issues live between her and the father; she admits as much. Mr F records in his second report (annexed to an affidavit filed on 28 March 2012):
34.I re-interviewed the mother after speaking with [the child] to ask her about a comment the child had made. I asked her why [the child] might have told me that her father lied to a lawyer about hurting her and she replied, “I told her”. She has explained to [the child] that a Judge is making a decision about her. She has a lawyer and her father has a lawyer and the Judge works out who tells the truth. She said that Daddy has said that he didn’t hurt her. She said of those discussions, “She’s old enough to know. I speak in baby terms. I don’t go into detail.” She added, “If she asks me a question I’m not going to lie to her. You know? She’s a smart kid.”
Dr J, a single expert psychiatrist, records something similar in her report (at [34]) “[the mother] said that she is alienating [the child] from him. ‘Of course I am’.”
There is no doubt that there was an incident between the father and the mother and the child; each talk about an incident in which the child was knocked over. The mother alleges this occurred as a result of intentional actions on the part of the father. The father alleges that there was an argument between he and the mother and when he arose from a chair he accidentally knocked the child over.
The father was the subject of two complaints of sexual impropriety to a professional board governing his work as a healthcare worker in the United States. He says that both complaints were made falsely, emanating from a bill each owed. He says that the failure to pay the bill was the motivation for their complaints.
The father maintains that he voluntarily surrendered his healthcare worker license following the complaints because he seriously injured his spine/neck in an accident and could no longer practise in any event. Records from the relevant licensing authority annexed to the mother’s affidavit indicate that, as the father maintains, he voluntarily surrendered his healthcare worker license “[i]n order to avoid the expense and uncertainty of hearing, and given that the [father] is physically disabled and has not actually practiced as a [healthcare worker] since February 3, 1995…”
The records from the licensing authority also reveal that as a result of the death of one of the complainants, the allegations made by that complainant were dismissed. Further, in voluntarily surrendering his license, the father neither confirmed nor denied the allegations made by the other complainant. Consequently, no positive findings were made by the licensing authority regarding the father’s alleged misconduct. While the broader character of a parent can be seen as relevant to one or more of the s 60CC Considerations, given that, in this case, the mother does not allege any sexual impropriety on the part of the father, I consider the allegations made against the father to be of limited relevance to the present proceedings, particularly when the other circumstances directly relevant to those Considerations are taken into account.
There can be little doubt that the mother has had significant mental health issues and, on the evidence before me, continues to have significant personality fragilities. Dr J says in her report:
36.She has a history of obsessive compulsive disorder and bulimia. She has married two abusive men who are much older than her. She breastfed the child for 3½ years and maybe (sic) overly enmeshed with her. Her behaviour in returning to [the child’s] father seems incomprehensible in the light of what she told me [about the extreme levels of her fear]. At this stage, she demonstrated a reactive and appropriate mood; no disorder of thought and appeared to be of average intelligence. Her obsessive compulsive disorder symptoms appear under control but her life history would indicate a lack of judgment.
Aspects of the Evidence
Aspects of the provisions of Division 12A of the Act which cast mandatory obligations upon the Court in the conduct of parenting proceedings were raised with those representing the parties and the ICL during the course of the trial.
The parties were content to adopt a position which permitted me to reject inadmissible evidence without argument ensuing about those matters, save that should any party assert that a ruling was crucial before embarking upon cross-examination or cross-examination about a particular issue, that would occur upon request.
Tendency and Coincidence
Some, at least, of the evidence called by the mother might be termed “propensity” or “similar fact” evidence – more accurately, “tendency” or “coincidence” evidence (s 94ff, Evidence Act 1995 (Cth) (“Evidence Act”)). Those sections are rendered inapplicable by s 69ZT(1)(c) of the Act. In any event, it seems to me that the use that might be made of evidence of that type in parenting proceedings can be seen to have utility beyond that which s 97 (and perhaps 98) of the Evidence Act otherwise precludes. In particular, parenting proceedings will often involve issues where the “character … or conduct” of a person can be seen to be in issue (s 94, Evidence Act). So much is clear from, for example, the terms of s 60CC.
That said, I express some concerns about attaching weight to that evidence so as to make a finding that specific acts of violence have occurred (as the mother contends should happen). In my view, slightly different considerations are relevant to the issue of risk and whether any such risk is “unacceptable”.
That is all the more so in light of the importance given by the mother to a retrospective assessment of alleged events long past in her arriving at a conclusion that statements made by the child are indicative of assaults perpetrated on the child by the father.
Hearsay Evidence of Japanese Housekeepers
The mother annexes to her affidavit two affidavits filed, it seems, in the Magistrates Court of Queensland, each from Japanese women who shared the parent’s household for, respectively, about three months and two weeks. The fact that each are proposed in hearsay form does not preclude their receipt (s 69ZT(1)(c)) although neither of the affidavits have been filed in this Court and neither are in the form required by r 15.09 of the Family Law Rules 2004. That said, no submission was made that the evidence should be excluded (for example, s 135, Evidence Act). However, I do not propose to attach any weight to the evidence. Neither deponent is available to be cross-examined, even by telephone.
Further, the evidence is largely irrelevant, consisting of unparticularised comment as distinct from probative fact (for example, “I have observed [the father] lose control of his emotions…”; “… when he got emotional there is not (sic) telling what he would be capable of when in such a state”.)
One of the deponents – Ms N – deposes that the child said “Daddy pushed me to the wall”. The affidavit confirms that she witnessed no such incident but was recounting what a child, then aged 2 years, had allegedly said to her. There is, in addition, a disparity between what Ms N says the child said and the mother’s account – the latter includes an allegation that the child said, in addition, “[h]urt, fall down”. Further, it is by no means clear what capacity each of the deponents, and Ms N in particular, have for understanding and speaking English; the father alleges the conversation to which reference was just made occurred with the mother interpreting Japanese whereas the mother says the conversation was in “slow English”.
Assessment of the Parties’ Evidence
I was unimpressed with the father’s evidence generally. There were a number of admissions made during cross-examination that earlier statements were false. One example, among others, is the father’s patently wrong statement that a punch from the mother had resulted in him suffering a “detached retina”. The father claimed he had attended upon a doctor as a result of being punched by the mother and the doctor had advised him that he had a detached retina. That same doctor gave evidence in the proceedings and stated that the father did not consult him for an injury to his eye and he had not diagnosed the father as suffering from a detached retina. When confronted with the doctor’s evidence during cross-examination, the father conceded that he did not have a detached retina.
I consider that the father was prone to exaggeration (the reference to receiving a detached retina is, perhaps, the best example). I consider that his recounting of many events was not an attempt by him to give an honest answer consistent with recall but, rather, an attempt to slant those events in a self-serving way. An example is the father’s claim that, when confronted by Australian Immigration officials regarding his failure to disclose his criminal history on the relevant entry documents, those officials were sympathetic to the father’s plight to change his life and told him that he “belonged in Australia”. I think that particular evidence is false.
It should be said, of course, that those assessments of the father’s veracity and credit do not necessarily lead to a conclusion that all of the father’s evidence should be rejected and, as will become clear, I make no such finding.
I was equally unimpressed by the evidence of the mother. I consider the mother was similarly prone to exaggeration designed to affect a self-serving purpose. On several occasions her evidence was false. By way of example, the mother stated during cross-examination by the ICL that her account to the police on the night she alleges that the father pushed the child included her telling them that the push was intentional. There is nothing in the documents produced pursuant to subpoena by the Queensland Police Service to indicate that was said and I find it difficult to accept that, if said, it would not have appeared somewhere in those documents.
Unacceptable Risk of Physical or Emotional Harm?
Illegal Drugs
The risk said to be posed by the father can be seen to be linked to the father’s admitted history of the use of, and addiction to, illegal drugs. There can be no doubt that this is a significant matter.
The father’s admitted addiction is an admission to, as Mr F expresses it, “… a long term relapsing/remitting disease of addiction”. The father admits to “six or seven” “relapses” over a period of 15 years. The father’s admitted criminal history is integrally connected with illegal drug use. The father also draws a causative connection between illegal drug use and the conduct leading to the domestic violence orders obtained by former partners or girlfriends.
A considerable amount of cross-examination was addressed to the father’s drug use. Specifically, it is contended that his admitted relapse in 2008 involved him taking drugs. He denies that. He says that he uses the word “relapse” in a broader sense; he bought drugs, he contemplated using them, but did not do so. Aspects of the father’s evidence are troubling in that respect; for example, he told a counsellor that he had used the purchased drug “the other week” (Exhibit ICL 1). Further, a doctor consulted by the father on the day after he purchased the drugs gave evidence that the father had told him that he had relapsed and used speed. The father could not explain how it was that these admissions to the counsellor and the doctor were recorded in light of his evidence to the contrary.
Ultimately, however, I think little turns on his evidence (which I regard as false) that he did not use drugs in 2008. The role of the father’s use of drugs and his addiction in informing the assessment of risk primarily emanates, in my view, from: the nature of the father’s addiction – it is long-standing; the drugs consumed are what are commonly referred to as “hard drugs”; the personality vulnerabilities that draw the father to the drugs; and, the admitted relapses over a long period.
That said, those matters need to be balanced against evidence which I accept, and which I regard as persuasive, that he has been drug-free for at least four years (i.e. since 2008) and has taken positive steps to address his addiction. The father has also voluntarily undertaken several urine drug analyses which have all been clear of illicit drugs. The hard work (in the psychological or emotional sense) required to achieve that position should not be underestimated, particularly when that occurs against the background of what I regard as the stress of dealing with these proceedings, not seeing his child, and an uncertain future immigration status.
The Child’s Statements
The evidence reveals only one incident where it is common ground that something happened to the child – the incident in March 2010 whereby, it is agreed, the child ended up on the ground after contact with her father.
The mother contends that the child has said things about that incident. The evidence contains no such reference. The mother deposes to the child’s statement (as she has it) that: “Daddy push me wall. Hurt, fall down”. The mother attributes that statement (when the child allegedly repeated it post-March 2010) to the “pushing-over incident”. Yet, the mother deposes that this statement was first made by the child three months before the March 2010 incident.
The child was seen by Mr F on 20 March 2012 (when she was not quite 5) at which time she told Mr F:
·“My Dad punched me as a baby. Don’t give it to my Dad. Just my Mum” (at [35]);
·At separation “We left in a hurry” (at [36]);
·When asked if she could remember something she liked about her father: “ He was trying to make me healthy with pear juice. I said no. I think he was making me healthy” (at [39]);
·When asked what she might change about her Dad if she could change something about him, she replied “Go to gaol” (at [39]).
In respect of the first statement, it might be observed that a child not yet 5 was purporting to record a memory of an event when she was “a baby”. The evidence contains no allegation that the father punched the child at any time. The only evidence before me of any incident between the father and the child based on direct observation comes from the conflicting versions of the father and mother in respect of the “pushing-over incident” which occurred immediately before separation in March 2010.
The mother’s affidavit, filed 22 February 2012, recounts 21 separate things allegedly said by the child between April 2010 and March 2011. She says:
23.[The child] is nearly 5 years old. Her speech has improved significantly and in recent times has been able to disclose to me more clearly how she feels. Whenever [the child] spoke of her father, I would record in my diary things that [the child] said. In particular [the child] made the following disclosures to me…
Despite the mother’s assertions to the contrary in the witness box, many of those entries do not set out direct “disclosures” by the child, but, rather, the mother’s description of them. It is, I think, important, to record some of that to which the mother deposes as “disclosures” of the child:
(c)21 May 2010 [that is, when the child was barely three years of age] – “[The child] went on and on for about 15 minutes about stuff like when she was in my tummy she was scared of Daddy and she was hiding inside Mummy’s tummy. She pushed and pushed Daddy with her foot and pushed Daddy away and Daddy died and me happy. Me pushed Daddy and scratched Daddy me long nails and Daddy go away and police say thank you [the child’s name] police took Daddy away etc. over and over. I said that I didn’t want to talk about this anymore. She said no Mummy me need to. This was all at bed time because her magnets were missing from her magnet book and she started with Daddy took my toys. Might have even gone on for 20 minutes. Also said her dinosaur went aaargh at Daddy and made Daddy go away.”
…
(j)03/10/2010 – “…[The child] told me that Daddy hit her and hit her and hit her. Mummy was at the hairdressers 2 times. Daddy hit me when Mummy at the hairdressers 2 times and Daddy hit me when you were here, you were here Mummy, you were upstairs and Daddy hit me. I asked how many times did he hit her. She said 1 2 3 4 5 8 9 10 13.”
Nothing said by the child can pertain to any incident which occurred subsequent to March 2010 (when her parents separated on a final basis). In respect of any or all of the things alleged to have been said by the child, the mother conceded that the child never made any “disclosures” contemporaneous with any alleged incident. For instance, during the time the parties were living together, the mother concedes that she never returned from the hairdressers or the supermarket (being the times the mother identified that the child was left alone with the father) to have the child tell her that her father had hit or kicked her.
The Alleged Incident When the Father Allegedly Assaulted The Child
As has earlier been observed, there is no doubt that an incident in which the child was knocked over occurred in about March 2010 (when the child was almost three). The father says that this was accidental. The mother asserts it was deliberate; an assault.
It is important to put the alleged incident within the context of other allegations made by the mother in relation to conduct by the father toward the child. The mother is clear that she has witnessed only this one incident of what she says is violent conduct by the father toward the child. (She says, however, that the child has “said many more things” – an issue to which I shall return.)
This assertion that only one incident has been witnessed should, in turn, be seen in the context of clear evidence by the mother that, from the time when the child was a baby, she considered the father “negligent” in his care of the child when left alone with her. She alleges he permitted her to roll off the bed “frequently”. She says that, as a result, it was necessary for her to keep a close eye on her.
The only probative evidence in relation to the alleged incident comes from each of the parties. The child makes a number of statements about her father that might, on one view, be seen as indicative of violent behaviour toward her but says nothing that can be seen as descriptive of the incident under discussion.
According to the mother, the father was “yelling” at her because she had informed him she would be moving out the next day. The mother says that whilst she had earlier put the child to bed, the child came downstairs during her parents’ argument and “started hitting [the father] in the belly and sticking up for [her mother]…saying to him ‘Stop that Daddy’”. The mother deposes to the father having then “…pushed [the child] away…” and the mother “…picked her up…”. During oral evidence, the mother stated that the father had been sitting on a lounge and had “shoved” the child with “two hands” whilst he was still sitting.
The father says that he did knock the child over but that it was accidental. Questions were asked of the father to the effect that his account had varied. I am not persuaded that those variations are persuasive of any lack of veracity or credibility about this incident.
The father deposed to the child “standing behind me without my knowledge. I turned around to leave the room and bumped into [the child] knocking her onto her bottom. I got [the child] straight back up and she was fine.” During oral evidence, the father stated that he “tripped” over the child when he turned to leave as he was unaware that she was behind him and his balance has been permanently affected by the injury he suffered to his spine/neck. I note in this respect that a letter from “[Mr I, M.D.]” dated 6 October 2003, which is annexed to the mother’s affidavit, states that as a result of “cervical fracture and osteomyelities of lumbar spine” the father “has developed neurological deficit of the lower extremities with associated right foot drop.”
The mother claimed that she had told the police, when they attended at the parties’ residence that evening, that the father had intentionally pushed the child over. There is no reference to any such incident in the documents produced by the police pursuant to subpoena.
The mother deposes to having “informed DOCS of the disclosures made by [the child] about her father. As a result a child safety concern report was filed on 9 April 2010.” There is no evidence from the Department of Communities, Child Safety and Disability Services (“the Department”) before the Court.
I repeat that nothing the child has allegedly said could be construed as her recalling the alleged incident.
I consider it more likely than not that the father inadvertently knocked the child over as opposed to assaulting her as contended by the mother.
Allegations of family violence
The mother alleges that the father was physically and verbally abusive towards her on a number of occasions during the parties’ relationship.
The father admits striking the mother in the face in late 2009 however he says that that was a one-off incident. The mother similarly concedes throwing a phone at the father and striking him.
The mother applied for a Domestic Violence Order on 26 May 2009. In that application, the mother states that on 25 May 2009 she and the father were having an argument during which the father allegedly “grabbed me with both arms (like a bear hug) and pulled the phone cords out of the wall” to prevent the mother from calling the police.
A Protection Order was subsequently made on 5 August 2009 naming only the mother as the aggrieved. The order required the father to “be of good behaviour towards the aggrieved and must not commit domestic violence” for a period of 12 months. On 17 August 2009, the mother filed an Application to Revoke or Vary a Domestic Violence order. In that application the mother stated that she wanted to add the following extra condition to the Protection Order made on 5 August 2009:
No phone contact or emails with me other than to organise to see [the child] at the Contact Centre. Phone contact every 2nd day to speak with [the child] between the hours of 2pm à 4pm.
No more text messages, phone calls to me, my family or my friends.
No more emails except for the abovementioned.
The mother set out the following reasons for why the extra conditions should be included in the order:
Tired of intimidating & harassing phone calls & emails. I am currently receiving up to 10 emails per day & up to 10 phone calls per day. My parents are receiving phone calls, my friends have received phone calls, my next door neighbour has received phone calls. This is harassment & I’m tired of it…
No such variation was made.
The mother and father subsequently resumed cohabitation. The mother says she did so as the father had filed proceedings in the Federal Magistrates Court and she hoped that by reuniting with the father “the bullying would stop and the legal proceedings would stop.”
According to Dr J, a psychiatrist who conducted psychiatric assessments of both the mother and father, the mother’s “behaviour in returning to [the] father seems incomprehensible in light of what she told me [about the alleged abuse of her by the father].”
The mother says that shortly after she and the father resumed living together, the parties got into an argument as a result of the mother’s refusal to write a letter “to immigration”. The mother says she was “hit hard across the right side of my face. This happened in front of [the child] in the bathroom. I called the police and [the father] was arrested.” The father accepts that he slapped the mother across the face on this occasion but says that he had taken the child from the room before he assaulted the mother and says that he struck the mother as a result of her provoking him (by calling him a “cunt”).
According to the mother, the father pleaded guilty to “the charges”. (It is not apparent on the evidence before me what those charges were). The father stated during oral evidence that he was fined $650 as a result of the incident.
On 7 April 2010 the mother again applied to vary the Protection Order made on 5 August 2009. In the application to vary, the mother cites the father having “pushed” the child, together with her receiving “up to 18 phone calls per day on top of numerous text messages” and the father attending upon the child’s kindergarten and “harassing” the mother as the reason for her seeking that the Protection Order be varied so that the father only have contact with the mother between the hours of 2pm and 4pm each alternate day for the sole purpose of speaking with the child.
The Protection Order was, subsequently, temporarily varied such that the father was prohibited from, inter alia, coming within 50 metres, entering, or remaining in the mother’s home or workplace. The father was also prohibited from having any contact with the mother, save for the purpose of having contact with the child with such contact to either be agreed in writing between the parties or pursuant to orders under the Act. The child was included as a “named person”. Those conditions were subsequently included in a further Protection Order made on 1 July 2011. That Protection Order expires on 30 June 2013.
In is uncontroversial that the father was charged with and found guilty of breaching the then-current Protection Order in 2010 as a result of his contacting the mother outside of the time specified in the Protection Order. The father contends that he did so as the mother had failed to facilitate phone communication with the child during the specified time. Whilst the mother describes the father’s phone calls as being “harassing & threatening” in the application completed by her to vary the existing Protection Order, Mr F reports the mother stating that the phone calls were “non-threatening in nature and focussed on [the father] wanting to see [the child].” There have, it seems, been no breaches by the father since that time.
Whilst the mother contends that the father assaulted her on a number of occasions in the presence of the child (for instance, “When [the child] was old enough to stand, she witnessed [the father] hitting and kicking me whilst I was sitting at the dining table”) she makes reference to the child witnessing only one occasion (being the occasion on which the father concedes he slapped the mother in the face) of the father being physically abusive towards her in both the original application for a Protection Order and in the two succeeding applications to vary. Indeed, in the original Protection Order Application dated 26 May 2009, whilst the mother stated that the father had been “physically abusive since I was pregnant”, she goes on to state that only “yelling, name calling, insults etc” (which she conceded “sometimes goes both ways”), had occurred in front of the child.
I also note that the mother resumed cohabitation with the father after he had physically assaulted her and there is no independent evidence, in particular in the documents produced pursuant to subpoena by the Police, to indicate that the mother had notified them of any further incidents of alleged violence perpetrated upon her by the father. Again, I note that the Application to Revoke or Vary a Domestic Violence Order completed by the mother and filed on 7 April 2010 refers only to one occasion (being the uncontentious incident during which the father slapped the mother) on which the father had assaulted her.
The mother also relies on evidence of incidences of domestic violence between the father and his partners in the United States to support her contention that the father has been violent towards her.
It appears from documents attached to the mother’s affidavit from a Police Department in California that, on 22 March 2002 the father violated a “restraining order” which had been made against him upon the application of the mother of one of the father’s two sons, O. According to those documents, the father had, contrary to the “restraining order”, contacted O’s mother and “threatened to take their son…”. The father denied ever being violent towards O’s mother. The father stated during oral evidence that the “restraining order” was “thrown out of court.”
The father concedes that he was the subject of a “restraining order” preventing him from having any contact with an ex-girlfriend and was also ordered to attend a “Batterers’ Intervention Program” in 2003. The father completed that program and, according to a “Batterers’ Intervention Program Progress Report” dated 24 October 2006, the father had “made a large contribution and also gained a lot from this program.”
Father’s alleged abuse of other children
Evidence of the father’s alleged abuse of his other children is, in my view, relevant to the issue of risk posed by the father to the child and whether any such risk is “unacceptable”. (The same may not be true if the central issue here was whether a particular assault occurred and involved a potential punishment).
Documents attached to the mother’s affidavit which appear to be records from the “State of California Health and Welfare Agency” reveal the following:
3-26-02 Case Received.
Allegation of general neglect to the child [O] by the father [Mr Baglio] is substantiated. Allegation of physical abuse to the child [O] by the father [Mr Baglio] is added and substantiated…
3-28-02…[O]…agreed to be interviewed alone…He stated that all his needs are met and reported that he feels safe now that his mother has a restraining order against the father…The child reported that he does not want to see his father because the father use to hit him all the time with a paddle. He stated that the father has hit him on the hand and buttocks and noted that he was bruised on several occasions…
Whilst the father denies assaulting either of his sons, he says that he did “smack” O’s hand with a ruler as his son had opened a drawer in which the father kept a gun and he “spanked his behind” with a “paddle” when he was 3 years old as he had gone “outside in the snow” with no clothes on.
The mother deposes to the father having “admitted to me to ‘beating the crap’ out of [his other son]’”. The father denies this.
Conclusions as to risk of harm
In terms of the risk posed by the father’s drug use, I accept that the father has been drug-free for at least four years (i.e. since 2008). I am, however, cognizant of the long-term relapsing nature of the father’s addiction. In that context the ICL proposes the following orders (subject to orders being made that the father spend time with the child):
9.That the Father submit to urinalysis drug testing as requested by the ICL, and will within 48 hours of the receipt of a request for a drug test, provide the ICL with their drug test result.
10.The Father undergo hair follicle testing within two days of being requested to do so by the Independent Children’s Lawyer but no more than once in the next six month period and, in implementation of this Order:
a.The father shall attend [Z] pathology and allow [Z] to remove from him segments of hair of sufficient length to test for the presence of drugs in the 5 drug classes of opiates, benzodiazepines[,] narcotics, codeine and amphetamines for the last 12 months.
…
The father was amenable to such orders being made provided that the time for complying was specified as two business days. Given the types of drugs taken by the father and the chronic relapsing nature of his addiction, I consider such orders to be warranted, should orders be made for time between the child and the father.
In terms of the father’s alleged physical abuse of the child I consider the following factors to be significant: on the mother’s own evidence the child made no statements contemporaneous with any alleged abuse; whilst the mother now deposes to noticing bruises on the child’s legs during the parties’ relationship, the mother did not, during the time the parties were cohabitating, report to Police, the Department or in any of the documentation relating to the obtaining and variation of Protection Orders, seeing any injuries upon the child indicative of the abuse she now alleges; the mother has told the child about the abuse the father allegedly perpetrated upon her (i.e. the mother); and, there is no evidence from either the Police or the Department in respect of any allegations or findings of abuse of the child by the father, notwithstanding the mother’s claims that she has informed both of the father’s alleged abuse of the child.
Further, the mother contends that the father told her during their relationship that he was concerned that he may have “stuffed up” the child’s wrists “for life” as a result of “how he used to grab her by the wrists when disciplining her.” Whilst the father denies ever saying this to the mother, the mother maintained during oral evidence that the father had said this to her. The mother did, however, concede that she did not take any steps to protect the child from further harm following the alleged statement by the father because, according to the mother, she did not know whether or not the father had in fact injured the child’s wrists. There is no evidence before me that the mother has, post-separation and in light of the alleged statements by the child, taken the child to see a doctor regarding the father’s alleged admission that he made have “stuffed up” the child’s wrists.
In respect to the evidence of abuse of O, I note that the substantiation of physical abuse of O by the father by the relevant authorities in the United States occurred some 10 years ago and, further, the father was, on his own evidence, regularly abusing illicit substances at that time. In contrast to that evidence, there is no evidence before the Court from either the Police or the Department in this country in respect of abuse of the child by the father. Further, I accept that the father has not used illicit substances since 2008.
It is uncontroversial that the father struck the mother in the face in late 2009. The only evidence of other alleged incidences of violence by the father is confined to the statements now made by the mother. There is no evidence from the Police corroborative of the mother’s claims and this is so despite the mother deposing to the Police having been called to the parties’ residence on at least 12 occasions. The mother also concedes that she has been violent towards the father.
The parties have not been in contact for over two years and, in that time, the father has, according to the account given by him to Mr F, had a sexual relationship with another woman with whom he is presently sharing a home. There is nothing before the Court to indicate that there have been any incidences of violence between them. It also appears that the father has not violated the Protection Order made on 1 July 2011.
I am also cognizant that the father has undertaken several courses since separation to, inter alia, address issues with anger.
As I have earlier said, I do not accept the mother’s claim that the father intentionally “pushed” the child over and in light of the totality of the evidence before me, I am satisfied, to the requisite standard (see, s 140, Evidence Act) that whilst the father continues to abstain from taking narcotics and illicit substances, he does not pose an unacceptable risk of harm to the child.
A number of issues directly relevant to the best interests of the child can be seen to find reflection in the primary and additional considerations which the Court is compelled to consider by reference to s 60CC of the Act within the context of the Objects and Principles outlined in Part VII.
Issues and Considerations
Section 60CC(2)(a) – Meaningful relationship
The Court is compelled to consider the benefit of the child having a meaningful relationship with both of her parents (s 60CC(2)(a)). More than 20 years prior to the inclusion of that particular primary consideration within the legislation, Nygh J said in Cotton & Cotton (1983) FLC 91-330 at 78,252 – 78,253:
One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents. That is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated …
However, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist. Nor is it necessary, as it must be obvious from the way I have expressed myself, that access should only be denied if it is established that a parent is likely to be a positive harm to the child - it is the emotional relationship which counts and not the inherent harmfulness of the parent as such: thus I can well imagine that in certain circumstances a woman who leads a totally immoral life such as a prostitute may have something to offer her children. On the other hand, it may be that a person who leads a life which to the general observer is one of a pillar of rectitude has nothing to offer to his children. In this case, as I have said, it is not a question of generalisation. One must come down to the real situation of the parties.
There can be no doubt, and the father to his credit readily concedes, that the child enjoys a relationship with her mother which is not only beneficial to her, but is also significant and valuable (see, ss 60CC(2)(a) and (3)(b) and Sigley v Evor (2011) 44 Fam LR 439).
The father, however, has neither seen, nor spoken to, the child for over two years.
The mother stated during oral evidence that there is no mention of the father or any photographs of him in the child’s home. According to the mother, the child “knows basically of [the father’s] existence and his violence” and that is the extent of her knowledge of him. The mother concedes that she has actively alienated the child from her father.
According to the mother, the child stands to gain nothing from a relationship with her father. The Family Consultant, Mr F opined in his most recent report that:
46.…If the Court is to make findings about the father having engaged in acts of family violence as the mother has alleged it, I have doubts as to the benefits to the child in having an ongoing connection of much substance with him. [The child] ought to be entitled to information about him through photographs and some letters. Any face to face time, if it occurs at all, ought to occur initially by way of a s65L process and perhaps with short infrequent supervised arrangements over the longer term.
47.If however such findings are not made, the information suggests that the father may be stable enough at this stage for the Court to consider some sort of graduated re-introduction. It should commence with supervised time on a reasonably frequent basis, with the scope to move into unsupervised arrangements…
Mr F also stated during oral evidence that the father “does not exist” in the child’s life and it would benefit the child to have some information of her father which is independent of her mother.
As Nygh J said in Cotton the “desirability” for the child to have a meaningful relationship with her father “only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake.”
The child was about three years of age when she last saw her father. The only positive memory she has of him, it seems, is having received a fruit juice from him.
The child has been denied the opportunity to develop a meaningful relationship with her father as a result of the mother’s claims that the father has physically assaulted the child. As I have said earlier in these Reasons, I do not accept that the incident in March 2010 occurred as the mother alleges; rather, I consider that the father accidentally knocked the child over. Further, I do not consider that the father poses an unacceptable risk of harm to the child provided he continues to abstain from the use of narcotics and illicit substances.
In light of my findings set out above in respect of family violence and risk of harm to the child, I consider that “there is a chance of a meaningful relationship [with her father] which is beneficial to” the child. I also consider the corollary to be true. For the reasons set out by Mr F, I consider that the absence of her father from the child’s life has the potential to cause her harm in the long-term. I consider that the child should be given the opportunity to develop that relationship with her father.
Section 60CC(2)(b) – Protection from harm
I have dealt with the issue of family violence earlier in these Reasons. Both parties concede they have been physically violent towards the other during their relationship.
The mother contends that the father has been verbally and physically abusive towards her since the parties commenced living together in the United States.
Leaving aside the incident in late 2009 which the father admits, there is no evidence before the Court, other than the mother’s evidence, of the father being violent towards her since the parties commenced their relationship in the United States in 2006. Indeed, whilst the mother contends that the police attended upon the parties on several occasions whilst they were in the United States the mother provides no evidence from the relevant police department(s). This is so despite the mother annexing records from the relevant child protection authority and from a Police Department in Orange County to her affidavit.
The father has, post-separation, undertaken courses directed towards anger management. Further, I accept that the father has not relapsed since 2008 and has, according to the report of Mr F (which was unchallenged in this regard), been in a relationship with a woman and there is no evidence before the Court to suggest there have been any incidences of violence between the father and that woman.
The father concedes that he contravened a Protection Order in 2010 by calling the mother and texting her outside of the specified times, however he maintains he was simply wanting to communicate with his daughter. Whilst the mother describes the phone calls and text messages as “harassing” in a subsequent application to vary the existing Protection Order, Mr F reported and, again, his evidence was not challenged in this regard, that the mother indicated that the phone calls were “non-threatening” and were directed towards the father communicating with the child. There appears to have been no contraventions of the Protection Order(s) by the father since then.
The mother contends that she is more concerned about the father physically harming the child than she is about him relapsing. I have dealt extensively with the mother’s contentions regarding the father’s alleged abuse of the child earlier in these Reasons and reiterate my findings that the father did not assault the child in the manner alleged by the mother and that whilst the father continues to abstain from consuming illicit drugs, he does not pose an unacceptable risk of harm to the child.
Section 60CC(3)(a) – Views of the child
The child is still very young. She was not yet three years of age when her parents separated and is presently almost six years old. She lacks the maturity to express views that might be seen to be, of themselves, highly persuasive in determining orders consistent with her best interests. Yet, the voices of children should be heard and listened to by the Court within the confines of the level of development that underpins them, and to the extent that the Court can have confidence that their views are their own and heartfelt.
For the reasons given earlier, I have significant concerns regarding the veracity of the mother’s accounts of what the child has allegedly said to her since separation. Many of the statements attributed to the child by the mother were made when she was between three and four years of age and comprise purported recollections from when she was aged about 2½ years and younger.
Further, whilst the mother contends that the child has not expressed any desire to see her father, I consider that to be the likely result of the mother’s conceded alienation of the child from her father. The father, according to the mother, is not discussed in the child’s home other than, it seems, by reference to alleged violent acts towards both the mother and the child. Mr F reports the mother saying that the child is “in fear [of the father]. We live in fear of him. I drove twenty kilometres to Kindy. I am afraid.” The mother also conceded that “I’m sure [the child] does see my fear.” It is unsurprising, then, given that these are the only experiences the child has had of her father since she was about three years of age, that the child would not be expressing a positive desire to see her father.
According to Mr F, when he asked the child what it would be like if she were to spend time with her father, she responded “Um. Scary” and when asked “what might be scary”, the child replied “Hitting me”. I again note that the mother did not witness the father hitting the child and at no time prior to separation did the child say anything to her mother indicative of her father “hitting” her. I reiterate: if there is no unacceptable risk of harm to her, the child should have the opportunity to know, and have an image of, a father who did not hit her.
The child also told Mr F that she wanted her father to “Go to Gaol” because “he tells lies to the lawyer…[he says]…‘I never hit [the child’s name]’ and he did do that to me.” The mother subsequently conceded to Mr F that that statement by the child most likely emanated from conversations she had had with her daughter regarding the dispute between her and the father.
Mr F notes in his report dated 27 March 2012 that:
43.[The child]…has had nothing to do with her father for about two years. Her predominate view of him is negative. She sees him as violent and as a liar. She has information about lawyers and the Court, which is beyond her. Her negative view of the father may well be shaped and founded on his conduct. This remains a matter for determination. It is undoubtedly in my view, perpetuated vicariously through her mother and her antipathy for the father.
I accept Mr F’s evidence in this respect; it accords entirely with the impression I formed of the mother as a result of her evidence and demeanour in the witness box.
Whilst undoubtedly the voices of children should be heard and listened to by the Court, I have serious concerns that, to the extent that the child has said the things the mother claims she has, those statements stem not from the child’s actual memories but rather, from statements made to the child by the mother.
Section 60CC(3)(b) – Nature of the relationship
There can be no doubt that the child shares a meaningful and mutually beneficial relationship with her mother. Mr F described the relationship he observed between them as being “secure” and “comfortable”. The mother also gives evidence of a close relationship between the child and the mother’s extended family.
Thje child presently does not have a relationship with her father. She has not seen him nor spoken to him in over two years. She perceives her father as a “bad” man who needs to “go to gaol” as a result of him “hitting” her.
Section 60CC(3)(c) – Willingness and ability
I have significant concerns regarding the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and her father.
The mother readily admits to alienating the child from her father. She also stated during oral evidence that she was “not going to be supportive of anyone who has been violent towards [the child] being in her life.” In light of these comments by the mother, I agree with Mr F’s observation that “the mother is likely to comply with [orders providing for time between the child and her father] with the utmost reluctance.”
I also have concerns regarding the father’s willingness and ability (should orders be made that he spend time with the child) although I consider the father is more likely to facilitate (in a supportive or emotional sense) a relationship between the child and her mother than the mother is between the child and her father. In this respect I note that the father has undertaken several parenting and anger related courses post-separation and has described the mother as a “fantastic” mother.
Section 60CC(3)(d) – Effect of changes
The child has not seen her father in over two years. According to Mr F, she considers him to be a violent man and a “liar”. She also described the prospect of seeing her father as being “scary”. I have no doubt that any order for time between the child and her father will present a very significant change in circumstances for the child.
I also consider that any separation from her mother for the purpose of spending time with her father will cause the child distress as a result of the mother’s actions in “alienating” the child from her father and encouraging in the child a belief that the father is a “liar” and has been physically abusive towards both her and her mother.
I consider, however, that those effects on the child can be monitored by way of an order pursuant to s 65L of the Act such that initial contact between the father and the child is supervised by a family consultant.
The ICL seeks an order that if, as I have found, the father does not pose an unacceptable risk of harm to the child, time between the child and her father commence by way of one 30-minute session per week supervised by a family consultant pursuant to s 65L for a period of four weeks. After that time, the family consultant is requested to provide a report and, if it is recommended that time continue, such time is to be supervised by Ms R who, it seems, offers services as a supervisor for time on the Gold Coast. In the event that the family consultant does not recommend that time continue, the ICL seeks an order that the matter be relisted “for interim hearing.”
In particular, bank statements in respect of the loan facilities secured over the V Street and X Street properties reveal that, in terms of the two loans secured over the former, from at least June 2011 no payments were received in respect of one of the loan facilities, whilst, in respect of the other facility, $405.45 was paid monthly from separation until the property was sold in November 2011 (exhibits M7 and M9). For the reasons given below, I accept that from May 2010 the mother was responsible for making those monthly repayments.
In terms of the X Street property, one deposit of $1305 is recorded as having been received from the parties’ residential offset account (which is now recorded as a joint liability of the parties) in April 2010 (see, annexure “MM8” to the father’s affidavit filed 30 August 2012). However, thereafter, deposits were received from a different account. The mother says that in April 2010 she “took over the mortgages” in respect of the V Street and X Street properties and, as a consequence, the rent from each was deposited into a different account and the mortgage repayments made therefrom. The fact that from May 2010, deposits into the loan facility secured over the X Street property were made from an account different to the parties’ offset account provides direct support for the mother’s contention, which I accept.
That finding is further supported by bank statements from the offset account (see, annexure “MMB 8” to the father’s affidavit filed 30 August 2012) which, when compared with statements for each of the loans secured over the H Street and T Street properties (see exhibits M3 and M4), reveal that the only mortgages paid from the offset account, from at least November 2010 (being the earliest record on the bank statements in evidence), were those secured over the H Street and T Street properties.
Thus, contrary to the submission on behalf of the father, from at least November 2010 the residential offset account was not used to service the mortgages over the V Street and X Street properties but, rather, those properties for which the father was responsible (i.e. the H Street and T Street properties). This is also consistent with the mother’s evidence that she “took over” the mortgages secured over the V Street and X Street properties from April 2010.
The mother contends that she applied the whole of the rent received by her from the V Street and X Street properties towards repaying the mortgages. I accept the mother’s evidence that she was responsible for the monthly repayments of $405.45 in respect of one of the three mortgage facilities secured over those properties. There is no evidence before me of the amount of rent received from each of those properties either pre or post-separation and, thus, there is no evidence to suggest that the amount paid by the mother each month was not reflective of the amount received by her in rent from the properties. I reject the father’s contention that the mother did not apply the rental proceeds received by her towards the payment of the mortgages.
In any event, I note that the father’s income post-separation has been significantly greater than the mother’s and, significantly, that the mother has, notwithstanding this, managed to keep the Suburb K property (albeit now subject to a $190,000 mortgage) which now forms approximately 77 per cent of the net pool available for distribution between the parties.
X Street
As at the date of separation, the best evidence of the value of the property is the offer received by the mother in May 2010 (that is, two months post-separation) of $336,000. The mortgage liability in respect of the property as at March 2010 was $253,165.
From the date of the first offer on the property (being May 2010) to the date of sale (being some 16 months later), the mortgage in respect of the property had increased by approximately $15,000 (equating to approximately $940 per month).
Upon the sale of the X Street property, the whole of the mortgage secured over it was discharged and an amount in the vicinity of $30,000 remained, which was held in the father’s solicitor’s trust account. Those funds were subsequently applied, inter alia, towards discharging the mortgage(s) secured over the V Street property upon the settlement of that property in November 2011. The remainder of the proceeds of sale from the X Street property (about $12,000) were applied by the mortgagee towards arrears owing on the T Street and H Street properties.
V Street
The first offer received in respect of this property was $295,000 some 6 months post-separation. There were two loan facilities secured over this property; the amount owing in respect of each as at the date of separation is not in evidence. According to bank statements contained within exhibit M7, a total amount of approximately $260,000 was owing in respect of the two loan facilities as at June 2011 (being approximately 16 months post-separation). At the time of sale in November 2011, approximately $267,000 remained owing. The sale proceeds were insufficient to discharge those liabilities and there was a shortfall of approximately $15,000 which was met using a portion of the proceeds of sale of the X Street property.
In his affidavit filed 7 March 2012, the father contends that “[a]fter separation I did continue to pay mortgage repayments of four hundred and five dollars and forty five cents…until the loan was paid out on 24 November 2011…” In support of this contention, the father attaches an extract of a bank statement for account number …128 for the period of 14 December 2010 to
13 June 2011 which evidences monthly deposits of $405.45 into that account for that period. That account was one of two loan facilities secured over V Street property (exhibit M6). The mother contends that she was making the repayments of $405.45 and commenced doing so in or about April 2010.
The “transaction descriptions” for each of the payments set out in the statement annexed to the father’s affidavit, together with more extensive statements contained in exhibit M9, reveal that prior to 13 May 2010, payments had been received from “[BAGLIO the father’s initials/the mother’s initials]” (being the parties’ surname and both of their initials) whilst from 13 May 2010, the monthly payments of $405.45 were from “[BAGLIO the mother’s initials]” (being the mother’s surname and initials alone).
I accept the mother’s evidence that she alone made the mortgage repayments in respect of that particular loan facility from 13 May 2010 until the loan was repaid upon settlement in November 2011.
H Street property
The first offer received in respect of this property was in the amount of $368,000 and was received some 20 months post-separation. At the time of separation, the mortgage liability in respect of the property was approximately $333,500.
The father conceded during oral evidence that he moved into the H Street property in about September 2010 (approximately 6 months post-separation). The evidence reveals that as at September 2010, the mortgage liability secured over the property was approximately $335,600. When the property was sold in June 2012, the mortgage liability totalled approximately $360,250.
The father admitted during oral evidence that during the time he lived in the H Street property he made no repayments in respect of the loan secured over it. The father said that he did not make any repayments in respect of either the H Street or the T Street properties because, if it was either “keep my properties or fight for my daughter, the money went for my daughter” and the father thus applied the rent to his “attorneys”. It must also be noted that for a period of time when the father was living in the H Street property and not making mortgage repayments, his current partner was also living there. I reject his explanation for failing to make the payments.
Whilst the father seemed to accept that he had made no repayments in respect of the mortgage secured over the H Street property, bank statements included in exhibit M4 reveal that from 3 January 2012 until the property was sold in June 2012, the father deposited approximately $7000 into the loan account secured over the property.
The proceeds of sale were insufficient to discharge the whole of mortgage secured over the property and a shortfall of approximately $33,500 remains.
T Street property
As with the H Street property, the first offer received in respect of T Street (being $320,000) was not made until over two years post-separation. The mortgage liability secured over the property at the time of separation was approximately $295,000. At the time the property was sold, the mortgage liability had increased to approximately $320,000.
It is uncontroversial that the father was in receipt of the rental proceeds from the T Street property. The father accepted during oral evidence that he did not apply the rent he received towards repaying the mortgage secured over the property. As with the H Street property, the father’s reason for not doing so was, according to his oral evidence, so that he could use the funds to “fight for his daughter.”
Contrary to that oral evidence, in an affidavit filed 8 February 2012, the father deposes to having “…been in receipt of rent monies in respect of [T Street, Town A], this money has not been applied to any other purpose but has accumulated pending the outcome of the class action.” The father provides no support for that claim (for instance, bank statements evidencing the accumulation of the rental proceeds) and the father does not contend that upon sale of the property, he applied any accumulated rent to the reduction of the outstanding loan.
The proceeds of sale were insufficient to discharge the whole of the mortgage liability secured over the property and the parties remain liable for a shortfall of approximately $14,500.
Residential offset account statements
Whilst the father has accepted that he did not make any mortgage repayments from the time he commenced residing in the H Street property until early 2012 and that he did not apply rental proceeds received by him from the T Street property towards mortgage repayments, the bank statements from the parties’ residential offset account (annexure “MMB 8” of the father’s affidavit filed 30 August 2012) reveal that from the time of separation until 16 June 2011, sporadic deposits of varying amounts described in the transaction description as “[HH] Pty Ltd Landlord Payment” were made into that account.
It is not clear on the evidence before me whether the deposits were rent received from either of the H Street or T Street properties (noting that the rent received from the V Street and X Street properties was, it is agreed, received by the mother). Further, the date at which the deposits cease, namely June 2011, does not correspond with any relevant event (such as the father himself entering into a tenancy agreement with the tenants of T Street, which occurred in May 2011). Neither of the parties gave oral evidence in respect of the deposits and no submissions were directed to same.
The residential offset account statements also reveal, when compared with the statements for the loans secured over the H Street and T Street properties, that the “[HH] Pty Ltd Landlord Payment” deposits were used to make payments on the mortgage accounts secured over those properties (albeit those payments were insufficient to cover the interest charges on each and the mortgages continued to increase). In that respect, and leaving aside the payments made in November 2011 from the proceeds of sale of the V Street property, no repayments were made in respect of the mortgage secured over the H Street property from June 2011 until early 2012, whilst the last repayment in respect of the T Street loan was received in March 2011.
Whilst I take into account the fact that repayments were being made post-separation, it must be noted that between the date of separation and the last repayment from the residential offset account, the mortgages in respect of H Street and T Street had increased by approximately $9710 and $7600 respectively.
The evidence, when taken in its entirety, and noting the inconsistencies between the father’s evidence regarding when he did and did not make mortgage repayments and the relevant bank statements, suggests that rent continued to be deposited into the residential offset account until June 2011 and repayments were made from same into the mortgage accounts secured over H Street and T Street until March 2011. However, those repayments were insufficient to meet the interest charges and, by March 2011, the mortgages had increased by about $17,300. Ultimately, by the time each of the properties was sold, the mortgages had increased by a total of $50,000 since separation.
The Suburb K Property
It is agreed that post-separation, the mother has been receiving rent from her investment property at Suburb K. I note that the Suburb K property now forms the vast majority of the available property pool and whilst it is now encumbered by a $190,000 loan facility, the parties have agreed that they should share equally $100,000 of that debt. I also note that the mother has not worked remuneratively post-separation and has been dependent on Government benefits to support herself and, for a significant period of time, the child (although I am conscious that the father has recently commenced paying just over $1100 per month in child support).
Conclusions regarding contributions
I consider that contributions up to the date of separation favour the mother. Within the context of a short relationship, the mother brought to it an unencumbered piece of real property valued at nearly half a million dollars. It provided a home for the parties and, later, their child. It has increased in value (noting that the parties have now been separated for some years and that their relationship was short). The property now represents about 77 per cent of the total value of the parties’ respective interests in property. In addition, the mother contributed a cash sum of about $60,000 that permitted an investment property to be purchased (albeit that the real property investments of the parties have not been successful). I consider that she contributed to a significantly greater extent than the father in the capacity of homemaker and parent.
The father contributed his income which, although in the form of a disability pension, is of a significant amount (about US$130,000 per year). That permitted the mother to effectively be a full-time mother and to not seek remunerative employment to meet the family’s needs. The father also contributed a significant sum received by way of inheritance (as I find, about $368,000). That money was used to make property investments which failed and a gold coin investment which also does not find its way into the parties’ existing interests. His income permitted mortgage and other payments to be made which sustained those investments. Although the mother had an unencumbered home and later invested $60,000 received from the sale of another property owned with her brother, it seems to me more likely than not that her income position absent the father would not have seen her able to make the investments which the parties made. Again, it is to be noted that the investments failed. Indeed, the parties share a joint liability of about $50,000 which they would not otherwise have had.
The period post-separation (now almost three years) has seen a significant change to the respective positions of the parties and to the contributions each has made.
The mother, through her own actions about which the father complains, has been the sole carer for the parties’ child. The father has paid little in the way of child support; arrears of about $12,000 are owing and regular payments commenced only in mid-2012, some two years post-separation. I consider that the net value of the interests in property currently amenable to s 79 order have been diminished as a direct result of his conduct. While I do not consider that his actions have all emanated from a deliberate attempt to achieve that result, his actions in respect of the retention of rent and his actions in respect of the mortgages, in my judgment, render it unjust for the parties to share in the result of those actions equally. I consider that the mother should be seen as having made a greater contribution to the (attempted) preservation of those assets post-separation.
I do not propose to assess contributions separately by reference to the pre and post-separation periods. Section 79 does not require that to be done and, indeed, doing so can lead to difficulties (see, Dickons & Dickons [2012] FamCAFC 154). I assess the contributions of the parties from the commencement of their cohabitation to the date of trial in the proportion
65 per cent to the mother and 35 per cent to the father. That produces a disparity of 30 per cent which, in dollar terms, is represented by about $180,000. I consider that to be just and equitable.
Section 75(2) factors
The mother is 40 years of age. She is presently in good health and contends that her mental health issues are under control (s 75(2)(a)).
The father is presently aged 60 years. He has an extensive history of drug abuse, although I accept that he has not abused drugs since 2008. The father contends that, but for the injury suffered to his spine/neck, he is in good health. There are some concerns, he says, that as a result of that injury he will require surgery, although there is no medical evidence before me to suggest that his spinal injury is currently affecting his physical wellbeing (s 75(2)(a)).
The mother is presently unemployed, although she is writing a book which she hopes will be published. She is dependant upon the rent received from the Suburb K property, together with Government benefits (s 75(2)(b)). The mother has the primary care of the child (noting that the child should have commenced grade 1 this year). While there is nothing to suggest that the mother does not have the capacity to obtain gainful employment, she is a 40 year old who has been out of the remunerative workforce for, at least, five or six years. There is no evidence of any particular skills she possesses that might be utilised in earning an income.
The father continues to receive approximately $11,000 per month in the form a disability pension from the United States (ss 75(2)(b)). The father will continue to receive those monthly payments until he turns 65 in five years’ time. The father has no real property or any superannuation interest. He deposes to having recently established a company to sell food. The company is still fledgling and there is no evidence before me to indicate that it will provide a stable source of income for the father. He is, then, entirely dependent upon his disability pension.
As a result of my orders, the mother will continue to be the primary carer for the child (s 75(2)(c)). I note that the father is now paying approximately $1100 per month in child support (s 75(2)(na)). In five years’ time when, as the evidence would appear to reveal, the father’s pension will cease, the child will have the majority of her schooling ahead of her.
The father’s two elder children are now of an age where the father is not required to pay child support (s 75(2)(c)(e)) however, the father contends that he has been financially assisting his son, O, who resides in the United States. There is no evidence before me regarding the extent of this alleged financial support. I reject his evidence.
In the father’s Financial Statement (filed 30 August 2012) he lists as his partner a Ms CC. He attributes to her a weekly income of $250
(s 75(2)(m)).
Both parties are presently renting their respective residences. I note, however, that the mother remains the sole proprietor of the Suburb K property, which is presently tenanted.
The father’s present income position is significantly better than the mother’s. I am aware, however, that the father’s pension is his sole source of income. The father has no real property and no superannuation and has five years left before his pension payments cease. That said, assuming the father continues to receive an amount similar to that which he sets out in his most recent Financial Statement, namely, $10,680 per month, he will receive a further $641,000 (rounded) in the ensuing five years.
While the mother remains the sole proprietor of the Suburb K property, it is now subject to a $190,000 loan facility of which $100,000 is drawn down. As a result of the short marriage, she has an encumbrance which she did not have at its outset. If the mother is to retain the property, she will need to pay the father a cash sum that will need to be financed.
That property provides rental income to the mother. The mother is, however, primarily responsible for the day-to-day care of the child, although the mother is now receiving approximately $275 per week in child support from the father. There is no evidence to suggest that the father will have, at a time when the majority of the child’s schooling and its attendant expenses lies ahead of her, any meaningful income from which to contribute significantly to same.
Taking all of these factors into account, I consider that there should be an adjustment in favour of the mother of 7.5 per cent.
I am aware, as I must be, of the dollar amount of such an adjustment and the disparity it produces (respectively, about $45,000 and $90,000). They are modest amounts when compared to the current disparity in income of the parties and the child’s ongoing needs in the primary care of her mother. Yet, it seems to me that recognition must be given to the difference in age between the parties and the prospect of a dramatic change in the father’s income in five years’ time. I consider the adjustment appropriate.
Result and Orders – Just and Equitable?
The current respective positions of the parties can be seen to be:
| Father | Mother | ||
| Harley Davidson motorcycle | $50,000 | L Street, Suburb K | $605,000 |
| Motor vehicle | $19,000 | Furniture | $500 |
| Furniture | $5,000 | Jewellery | $5,000 |
| E Pty Ltd | $500 | Motor vehicle | $9,200 |
| D Pty Ltd asf the Baglio Trust | $Nil | Superannuation | $1425 |
| Add back (legal fees) | $90,000 | ||
| (Credit card) | ($2,000) | (Credit card) | ($31,985) |
| Half of the mortgage shortfalls | ($24,884) | (Line of credit) | ($100,000) |
| Half of the mortgage shortfalls | ($24,884) | ||
| Net position | $47,616 | Net position | $554,256 |
The result of the findings just referred to will see an adjustment to the existing legal and equitable interests of the parties so as to reflect the mother retaining the equivalent of 72.5 per cent of the value of them. The father will retain
27.5 per cent. The 45 per cent disparity is equivalent in dollar terms to about $271,000.As a result of the father receiving 27.5 per cent of the value of the existing property of the parties, he will receive property to a value of $165,514. Similarly, the mother would receive property to a value of $436,357. However, it is necessary to consider how orders might reflect those entitlements and whether, in turn, those orders are just and equitable.
As is all too common, little regard has been paid to the terms of the orders and how they might reflect findings (or alternative findings) as to a just and equitable outcome between the parties. There is, for example, no evidence of the mother’s desires in respect of retention of the Suburb K property. By reason of this property being owned by her and her ownership of it pre-dating the relationship as well as it currently providing a rental income for her, I have assumed she would do all that she can to retain it. The consequence of that is two-fold: she will need to make a cash adjustment to the father and, as there is no current available cash within her existing property, the payment will need to be financed.
As has been seen, there is an existing joint liability to the ANZ bank in respect of shortfalls resulting from the sale of the parties’ investment properties. No application is made pursuant to Part VIIIAA of the Act and the Bank is not a party (or otherwise been heard). Accordingly, if the property is to be retained, that liability will need to be discharged or refinanced. By reference to the assumptions earlier referred to, I am reluctant to order the sale of Suburb K if that can be avoided by the mother making the necessary arrangements.
With that in mind, orders would, in essence, reflect the existing interests in property with a cash adjustment to the father. The effect would be as follows:
| Father | Mother | ||
| Harley Davidson motorcycle | $50,000 | L Street, Suburb K | $605,000 |
| Motor vehicle | $19,000 | Furniture | $500 |
| Furniture | $5,000 | Jewellery | $5,000 |
| E Pty Ltd | $500 | Motor vehicle | $9,200 |
| D Pty Ltd asf the Baglio Trust | $Nil | Superannuation | $1425 |
| Add back (legal fees) | $90,000 | ||
| (Credit card) | ($2,000) | (Credit card) | ($31,985) |
| Half of the mortgage shortfalls | ($24,884) | (Line of credit) | ($100,000) |
| Half of the mortgage shortfalls | ($24,884) | ||
| Net position | $47,616 | Net position | $554,256 |
| Credit for the mortgage shortfall | $24,884 | Debit for the father’s portion of the mortgage shortfall | ($24,884) |
| Adjusted position | $72,500 | Adjusted position | $529,372 |
| Cash adjustment to reflect 27.5 per cent net entitlement (being $165,514) | $93,000 (rounded) | Cash adjustment to reflect 72.5 per cent net entitlement (being $436,357) | ($93,000) (rounded) |
| Entitlement | $165,500 | Entitlement | $436,372 |
Orders expressed in that form give some cause for concern about the justice and equity of the relative dollar positions of the parties; injustice might be seen to exist by reason of the father retaining at least some cash and negligible debt whereas the mother would have a valuable real property but with a significantly increased debt. I would make those orders only in circumstances where the mother considered that retention of the Suburb K property was, for her, more important than the consideration just referred to and, as I have said, I propose to afford the mother the opportunity to keep the Suburb K property by framing orders that will permit her to raise and pay the required sum to the father within a reasonable time.
In the event that the Suburb K property needs to be sold, the orders will provide that the parties keep their respective property at the values as found in these Reasons and the net proceeds of sale of the property divided, after payment of the shortfall in the mortgages, so as to give effect to the overall distribution between the parties in the proportions earlier referred to.
Child Support Departure Application
In the mother’s Amended Case Information document filed on 21 February 2012, the mother included within the orders sought by her, an order that “[t]here be a departure from the child support assessment…”
As the legal representative for the mother indicated during oral submissions, that issue has not been “litigated” and, consequently, the application would “have to [be] dismiss[ed].” I will so order.
I certify that the preceding two hundred and ninety-eight (298) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 27 February 2013.
Associate:
Date: 27 February 2013
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