BALDRY & BALDRY
[2020] FCCA 1788
•15 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BALDRY & BALDRY | [2020] FCCA 1788 |
| Catchwords: FAMILY LAW – Parenting – Mother proposes to relocate – whether in best interests – what time should children spend with Father – alteration of property interests – ascertainment of the property pool – assessment of contribution and future needs. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 79, 75, 106A, 117 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395 MRR v GR [2010] HCA 4 Stanford & Stanford [2012] HCA 52 Weir & Weir (1993) FLC 92-338 |
| Applicant: | MS BALDRY |
| Respondent: | MR BALDRY |
| File Number: | SYC 5040 of 2018 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 1 – 4 June 2020 |
| Date of Last Submission: | 4 June 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 15 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Haughton |
| Solicitors for the Applicant: | John Spence & Associates |
| Counsel for the Respondent: | Ms Snelling |
| Solicitors for the Respondent: | Suzanne Wyman & Associates |
| Solicitors for the Independent Children's Lawyer: | S P Nasti & Co Solicitors |
ORDERS
Parenting
All previous Orders are discharged.
The children X born in 2010 and Y born in 2012 (‘the children’) shall live with the Mother.
The Mother and Father have equal shared parental responsibility for the children limited to the children’s major long-term residence issues.
In respect of the children, the Mother have sole parental responsibility in respect of all other major long term issues (as that expression is defined in the Family Law Act 1975 (Cth)) provided that prior to the Mother making the sole ultimate decision about any such issue the Mother shall:
(a)Advise the Father in writing of the decision intended to be made;
(b)Seek the Father’s written response in relation thereto;
(c)Consider any such response prior to making any such decision;
(d)Advise the Father in writing as soon as reasonably practicable of her ultimate decision and in any event to advise the Father in writing of her ultimate decision no less than 14 days prior to acting on or implementing such decision, except in the case of an emergency.
(e)In the circumstances where the Mother intends to travel overseas with the children, she shall advise the Father in writing of her intention at least 2 calendar months prior to departure and shall in the notice include:
(i)The departure date;
(ii)The itinerary;
(iii)The reason for the trip;
(iv)Contact details whilst the children are overseas;
(v)Intended date of return; and
(vi)A copy of the airline tickets confirming departure and return dates.
Otherwise each parent shall have sole responsibility for the day to day care, welfare and development of the children during the period when the children are in that party’s care.
The Mother will continue to reside in the Sydney Metropolitan Area unless the consent of the Father is first obtained.
The children spend the following time with the Father:
(a)During the school term each alternate week from after school on Thursday to before school on the following Monday.
(b)During school holiday periods as follows:
(i)For the school holiday periods commencing at the conclusion of School Term 1 in years ending in an even number, for period of two (2) weeks;
(ii)For the school holiday periods commencing at the conclusion of School Term 3 in years ending in an odd number for the period of two (2) weeks;
(iii)For the school holiday period commencing at the conclusion of School Term 4 in the years ending in odd numbers, for the first three (3) weeks and years ending in even numbers for the last three (3) weeks.
(c)On Father’s Day if a non-live-with weekend from 9:00am until 6:00pm Sunday.
(d)From 6:00pm Christmas Eve until 3:00pm Christmas Day in even numbered years and from 3:00pm Christmas Day until 6:00pm Boxing Day in odd numbered years.
(e)From 5:00pm until 8:00pm on each of the children’s birthdays if such birthday falls on a weekday during a non-live-with week and from 1:00pm until 6:00pm if such birthday falls on a weekend during a non-live-with week.
(f)From 6:00pm Easter Thursday until 6:00pm Easter Saturday in even numbered years and from 6:00pm Easter Saturday until 6:00pm Easter Monday in odd numbered years.
(g)From 5:00pm until 8:00pm on the Father’s birthday if such birthday falls on a weekday during a non-live-with week and from 1:00pm until 6:00pm on the Father’s birthday if such birthday falls on a weekend during a non-live-with week.
(h)Such other or alternate time as may be agreed by the Mother and Father in writing.
The children reside with the Mother at all times other than as provided in Order 7 above but will also spend the following additional time with the Mother:
(a)On the weekend of Mother’s Day if a non-live-with weekend from 9:00am until 6:00pm Sunday.
(b)From 6:00pm Christmas Eve until 3:00pm Christmas Day until 6:00pm Boxing Day in odd numbered years and from 3:00pm Christmas Day until Boxing Day in even numbered years.
(c)From 5:00pm until 8:00pm on each of the children’s birthdays if such birthday falls on a weekday during a non-live-with week and from 1:00pm until 6:00pm if such birthdays on a weekend during a non-live-with week.
(d)From 6:00pm Easter Thursday until 6:00pm Saturday in odd numbered years and from 6:00pm Easter Saturday until 6:00pm Easter Monday in even numbered years.
(e)From 5:00pm until 8:00pm on the Mother’s birthday if such birthday falls on a weekday during a non-live-with week and from 1:00pm until 6:00pm if such birthday falls on a weekend during a non-live-with week.
During such times as when the children are not living with one parent, the other parent be permitted to communicate with the children by way of telephone or other electronic device not after 8:00pm.
The Mother and Father not consume alcohol, drugs or any illicit substances in the presence of the children or be in any way affected by them whilst the children are in that person’s care or control.
The Mother and Father not allow the children to be in the presence of a third party who is in any way affected by alcohol, drugs or any illicit substances whilst the children are in that person’s care or control.
The parties shall keep each other informed of their contact details including their:
(a)Email;
(b)Phone number; and
(c)Residential address.
The parties are to keep each other informed of any serious illness or injury suffered by the children when in their care and advise of treating practitioners as soon as practicable.
The Mother will forthwith authorise any school the children may attend to provide the Father (at his expense) photocopies of reports and newsletters or otherwise pertaining to the education of the children and authorise staff members to discuss the children’s progress with the Father.
Provided the Father gives the Mother 24 hours written notice of his intention to do so, the Father be at liberty to attend school events and activities including but not limited to parent/teacher meetings, school concerts and sporting events in which parents are able to attend or participate in.
Either parent notify the other if either Child is seriously ill or is to be admitted into hospital at such times as the children are living with that parent.
Both parties are restrained form denigrating the other party, the other party’s family and friends, the area in which the other party lives, to, or in the presence of the children and/or allowing other persons to do so.
Property
The Respondent Father be declared the sole owner of the property situated at B Street, Suburb C, NSW and being the whole of the land in title reference Folio: ... (“the B Street, Suburb C Property”).
The Father pay to the Mother the sum of $286,196 within 10 weeks of the date of these Orders.
In the event the Father fails to comply with Order 19 above, the following shall apply:
(a)Interest as calculated under the Family Law Act 1975 (Cth), its Rules and Regulations commence accruing on the amount outstanding pursuant to Order 19 above;
(b)Order 18 above be discharged;
(c)Within 12 weeks of the date of these Orders the Father do all acts and things to cause the property situated at B Street, Suburb C and being the whole of the land in title reference Folio: ... (“the B Street, Suburb C Property”) to be sold in accordance with these Orders.
(d)The Father be restrained by injunction from doing any act or thing which has the effect of devaluing the B Street, Suburb C Property or causing damage or destruction to the property or any part of it or its surrounds, or causing or requesting any other person to do any such act or thing so as to devalue, damage or destroy the property.
(e)The proceeds of sale of the B Street, Suburb C property be disbursed as follows:
(i)In payment of the mortgage;
(ii)In payment of D Pty Ltd;
(iii)In payment of agent fees and commissions;
(iv)In payment of any solicitor and legal fees for the conduct of the conveyance; and
(v)In payment to the Mother of $286,196 together with interest as calculated under the Family Law Act 1975 (Cth), its Rules and Regulations.
Other than as provided for above the Father and Mother shall be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession, ownership or control of each party as at the date of these Orders.
In the event that either party refuses or neglects to do all acts and things and execute all such documents as are necessary to give effect to these Orders within fourteen days of being requested to do so, a Registrar of the Federal Circuit Court of Australia be appointed pursuant to section 106A of the Act to execute all such documents in the name of the Father who is refusing or neglecting to do all acts and things necessary to give validity and operation to the said deed or instrument.
The Appointment of the Registrar pursuant to Order 22 above shall be deemed to have occurred on the filing of an Affidavit by the party deposing to the acts of refusal or neglect as the case may be, on short notice to the Registrar in Chambers.
Leave be granted to the parties to relist the matter on application to the Court in Chambers in relation to the implementation and enforcement of these Orders.
Any application for costs be provided by way of written submissions as follows:
(a)The Applicant for costs file and serve within 21 days written submissions not exceeding 500 words; and
(b)The Respondent to the costs application within a further 21 days file and serve written submissions not exceeding 500 words;
(c)The Applicant for costs file and serve within a further 7 days written submissions in reply not exceeding 250 words.
IT IS NOTED that publication of this judgment under the pseudonym is Baldry & Baldry approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
SYC 5040 of 2018
| MS BALDRY |
Applicant
And
| MR BALDRY |
Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons for Judgment explain the Orders that the Court has made in a dispute between two parents in relation to their children and in relation to the division of their property. The first part of this Judgment will deal with the parenting aspect of the case.
Background
The parenting dispute is about two children, X, born in 2020, who will be nearly 10 by the time these Reasons for Judgment are published, and her brother, Y, born in 2012, who is 8. The Mother is the Applicant, and the Father the Respondent. The children currently live with their mother, and spend time with their father. The Mother would like to be able to relocate with the children to a township on the Region E of New South Wales; the Father opposes this and would, in fact, like to spend more time with the children.
Having heard the evidence, and considered all the material put before the Court, a number of strong impressions are available. X and Y’s parents do not trust each other, cannot communicate effectively and their capacity to co-operate is very limited. The Court will conclude that the prognosis in relation to these matters is poor.
The Father is 43 years old, the Mother 38 years old. They both live in Sydney. They started living together in 2002, married in 2009 and separated in 2017. Their marriage was a difficult one, particularly towards the end. They operated a business, which encountered substantial difficulties, partly as a result of the Father’s declining mental health.
After separation the children initially remained with their father, but then went to live with their mother. The Mother entered into an unfortunate relationship after separation, which resulted in her being the victim of violence and the children being exposed to violence.
The present litigation commenced in 2018. The children spent time with their father. The Mother re-partnered. The current Order for the children to spend time with their father was made on 15 May 2019. The children live with their mother and spend time with their father each alternate weekend from after school on Friday to 5:00pm on Sunday, as well as each Tuesday from after school to 7:30pm, together with school holidays by agreement. Whilst the family did experience some difficulties, and perhaps some inconsistencies, with implementing the arrangements and Orders for the children to spend time with their father, the overall impression created is that it was a satisfactory arrangement so that the Father was able to maintain a meaningful involvement in the children’s lives.
The competing proposals
By the time of the Final Hearing the orders sought by the Mother are contained in her Amended Application filed 4 May 2020. The orders she proposed provide for the children to continue to live with her, for her to have sole parental responsibility, for her to be permitted to relocate with the children to the Region E region of New South Wales, and for the children to spend time with their father each alternate weekend from 5:00pm on Friday to 5:00pm on Sunday, the first half of the terms 1, 2 and 3 school holidays from after school Friday to 5:00pm the following Friday, and then by agreement for the Christmas school holidays.
The orders proposed by the Father are contained in a minute of order dated 24 May 2020. He proposed an order for equal shared parental responsibility, and that the Mother’s application to relocate be dismissed. He sought an order that the children live with each parent on an equal time week about basis. As an alternative to the equal time proposal, the Father proposed that the children live with him from after school on Thursday to the commencement of school the following Tuesday each alternate week, and live with their mother the rest of the time. School holidays would be shared.
The children were represented by an Independent Children’s Lawyer. During closing submissions, the Independent Children’s Lawyer proposed that the children continue to live with their mother, that there be an order for equal shared parental responsibility limited to major long-term residence issues, but that otherwise the Mother have the benefit of a modified sole parental responsibility order that required her to consult and advise the Father about decisions made. The children would spend time with their father each alternate week from after school on Thursday to before school on Monday, and school holidays would be shared.
Each of the proposals of course contained more detailed provisions that are referred to therein. Where it is necessary, the detailed provisions will be considered below.
The evidence
In the Mother’s case, she relied on the following documents:
a)Amended Initiating Application filed on 4 May 2020;
b)Affidavit of Ms Baldry sworn on 6 May 2020 and filed on 10 May 2020;
c)Affidavit of Mr F affirmed and filed on 13 September 2019;
d)Financial Statement of Ms Baldry filed on 21 May 2020; and
e)Case outline document filed on 26 May 2020.
In the Father’s case, he relied on the following documents:
a)Response to Initiating Application filed on 2 November 2018;
b)Affidavit of Mr Baldry sworn and filed on 15 May 2020;
c)Affidavit of Mr G sworn and filed on 15 May 2020;
d)Affidavit of Ms H sworn on 18 May 2020 and filed on 19 May 2020;
e)Affidavit of Dr J filed on 29 May 2020;
f)Affidavit of Ms Baldry sworn on 31 July 2018 and filed on 9 August 2018;
g)Amended Financial Statement of Mr Baldry filed on 15 May 2020; and
h)Case outline document received on 26 May 2020.
The Independent Children’s Lawyer relied on his case outline document filed on 25 May 2020.
The following material was tendered as evidence during the course of the proceedings:
a)Report from Dr K dated 16 July 2015;
b)Sentences 2 and 3 of [28] of the Respondent’s Affidavit filed 2 November 2018;
c)Email from Wyman Law dated 2 June 2020;
d)Bundle of the Respondent’s Tax Returns;
e)Family Report prepared by Family Consultant Ms L dated 23 September 2019;
f)Letter from Kids Focus dated 21 May 2020;
g)Tender bundles prepared on behalf of the Applicant;
h)Tender bundles prepared on behalf of the Respondent;
i)Tender bundles prepared by the Independent Children’s Lawyer; and
j)The Respondent’s Tax Disclosure documents.
The Mother, her partner, the Father, the paternal grandfather, the Father’s psychologist, Dr J, the Father’s aunt and the Family Consultant, Ms L, were all cross-examined.
The applicable law
The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Family Report
It is convenient to deal with the evidence from the Family Consultant first, not because her evidence has any primacy, but rather because it is the only objective, expert and independent evidence in the case. The Report itself, and the cross-examination of the Family Consultant, also becomes a convenient lens through which to consider some of the other issues in this case.
Family Consultant Ms L prepared a Report dated 23 September 2019. It was released to the parties on that date. In interviews, she had the benefit of meeting with the parents, the paternal grandfather, the Father’s aunt and the children. A telephone interview was conducted with the Mother’s partner. She had available to her all of the documents that had been filed as at the date of the interviews, including subpoenaed documents.
The Family Consultant correctly identified the current arrangements that are in place for the family. She identified one of the important issues in this case, and that is that Y has been diagnosed with Autism Spectrum Disorder (ASD). In the interview the Mother explained that she sought an order for sole parental responsibility and that the children live with her, and spend time with the Father from after school on Friday until Saturday at 10:00am in week 1, and then from after school on Friday until Sunday at 5:00pm in week 2, plus holidays and special occasions.
As will be seen, the Mother’s proposal changed by the time of the Hearing. The Mother had adverted to her desire to relocate with the children to the New South Wales Region E, but at a future time, indeed when X commences high school, which would be in 2023. It is clear that the Mother’s proposal to relocate to the Region E by the end of this year (as she later indicated in cross-examination, and through her Counsel) was not a proposal that was active at the time of the Report interviews.
The Father explained that he continued to seek orders for equal shared parental responsibility and equal time.
The Mother’s concerns about the Father’s mental health and the risk this would be for the children was one of the most important concerns on her mind. Related to her concerns about the Father’s mental health, were her concerns about the state of the former matrimonial home and its yard, which, she contended, contained junk and rubbish that had been accumulated as a result of the Father’s hoarding.
The Father expressed concerns about the psychological wellbeing of the children in the Mother’s care, particularly as she had exposed the children to her former partner’s abusive and violent behaviour.
The Mother presented to the Family Consultant as having genuine concerns in relation to the matters she raised, and as seeking to focus on the Father having a relationship with the children based on quality time, rather than quantity of time. She described her relationship with the Father before separation as one in which she felt controlled, and the victim of at least psychological abuse. She experienced the Father’s deterioration in mental health during the relationship. She believed that he had an undiagnosed hoarding disorder. The Mother accepted that she had a six month relationship with a Mr M in May 2017, during which he was physically and psychologically abusive of her, assaulted her, and this resulted in his incarceration. Her current partner, Mr F, was not violent or abusive in any way, and she described their relationship as close and loving.
The Father presented as also being genuinely concerned for the welfare of the children in their mother’s care, and that was part of the reason why he proposed equal time. He was concerned about the Mother’s actions in entering into a violent and dysfunctional relationship, which resulted in the children being exposed to family violence. The Father was also concerned that the Mother was not supportive of his relationship with the children, and, particularly in the post-separation period, inhibited his time with them. The Father agreed that he had a history of mental health problems, but that his mental health was now sound. He denied hoarding, however.
Both parents described their relationship with each other in very negative terms. The Mother indicated that there was no co-parenting relationship. The Father said that the co-parenting relationship was terrible. Indeed, he explained that all communication between the parents occurred via their legal representatives.
The Mother described quite busy lives for the children. Y, who had the benefit of funding under the National Disability Insurance Scheme, was involved in various supporting therapies. Both children play sports, and enjoy their sport. The Mother’s impression was that the Father did not necessarily agree with the diagnosis for Y and was disinterested and standoffish in terms of involving himself in the lives of the children outside of Court-ordered time. The Father was able to describe the range of activities that the children enjoy in his care. He was concerned, however, that both children were not comfortable with the Mother’s partner, Mr F.
X was interviewed and presented as an endearing, polite child who was easy to engage. Her description of who was included in her family included both her mother and father, as well as Y. She remembered that her parents used to argue a lot and knows that her parents are not friends. She referred to the Mother’s partner, Mr F, as “really nice” and as a person who “looks after us and helps mummy”. She was able to identify the current arrangement for her to spend time with her father and she said that she enjoys spending time with him, particularly going to the movies. X also described a close relationship with the Father’s aunt, who was clearly involved in her day-to-day life, including escorting her to school.
At paragraph 85 the Family Consultant reports:
X said that she thinks it would be more practical if she remained overnight with her father on Tuesday night instead of returning to Ms Baldry’s residence at the conclusion of time or sports training when this occurs during the sports season. She reasoned that she already has her school uniform and school items with her at Mr Baldry’s residence. X said that she enjoys spending time with her father, “but Daddy is away a lot [on the weekend] and I am with Aunty Ms H”. According to X, Ms N sometimes “looks after me all the time on weekends”. She reiterated, “Normally Poppy wants Dad at work a lot”. X appears to perceive that time spent overnight with Mr Baldry on Tuesday would potentially compensate for Mr Baldry’s apparent busy work schedule.
The Court makes two observations in relation to the above. X’s desire to convert her midweek time to overnight time is indicative of her wanting to spend more time with her father, not less. It also highlights one of the difficulties inherent in the Mother’s proposal to relocate as midweek time would become impossible. The second observation the Court makes is that when the totality of the evidence is considered, when X said that, “Daddy is away a lot,” it is more likely to represent her experience of missing her father, rather than any indication that he is literally away a lot on weekends.
The Court has had the benefit of considering the evidence of the Father, the Father’s aunt and the paternal grandfather, each of whom are involved in the children spending time with their father on weekends. What becomes clear from his evidence is that the Father might spend relatively short periods of time away from the children, and attending to work related matters, when they are with him. The Court will find that there is no reason for it to have any concerns about the veracity of the evidence of the Father’s uncle, or the paternal grandfather. It seems highly unlikely, therefore, that the Father is away for more than two hours, generally on a Saturday. When X expresses the view that “Daddy is away a lot” she is describing her experience, though not in literal terms. She misses her father when he is not there, especially when it is their weekend. The Mother’s case about the persistent absence of the Father, and thus his disinterest in the children, is not made out on the basis of what X told the Family Consultant.
Y was also interviewed. He presented as a quietly spoken and sweet natured child. He was difficult to engage and reluctant to discuss his family situation. He was able to provide limited descriptions of what he did with his father on the weekend, but the Family Consultant formed the impression that the Father’s aunt provided the children considerable care. There is no doubt that the aunt is involved in the care of the children and, indeed, it is at the home that is presently occupied by her that the weekend visits take place. The totality of the evidence before the Court suggests the children have an excellent relationship with her. Y was aware that his parents were not friends, so much so, he told the Family Consultant, that he could ascertain this by reference to “the look”.
The children were observed with the Mother. Unsurprisingly, the observations were quite positive. The Family Consultant formed the view that both children have a positive, close and loving relationship with their mother.
The children were observed with their father. The Family Consultant noted that the interactions between them indicate they share a mutually loving and close relationship. He engaged with them in a light hearted and fun manner, and there was laughter and banter. The Father seemed able to manage what was described as somewhat aggressive behaviour on the part of Y. When the Father left the family assessment the children affectionately farewelled him and X gave her father a card, which she appeared to have made, in a heart shape, on which was written the words “I love Dad”.
The Family Consultant’s evaluation commences at paragraph 99 of her Report. There were concerns, the Family Consultant stated, about the children’s emotional wellbeing, particularly the impact on them of exposure to ongoing parental conflict, poor parental mental health, and possible parental alcohol misuse and family violence. The parents were described as being “trapped in intense and persistent conflict”. They thought poorly of each other, communicate ineffectively, and struggled to contain and manage the hostility between them.
The Family Consultant observed that if the Court accepted the Mother’s evidence, then the Father perpetrated coercive and controlling family violence. However, she noted, the Father vehemently denies that this took place. The Family Consultant acknowledged that she could not discern the truth or otherwise of the parents’ claims about family violence, and that it was a matter for the Court. If the claims that each parent makes against the other are true, then there are potential risks for the children.
She believed that the Father was well supported by his aunt in the care of the children. This was a protective factor for them.
It was unfortunate that the Mother experienced a violent relationship post-separation. The Mother appears to have managed well in the circumstances. She did not believe that the children are at risk of exposure to family violence when in her care, and there was no material to suggest that her current partner presented a risk of harm to the children. Indeed, the Court can confidently conclude that any suggested risk of harm from the Mother’s current partner, Mr F, or the risk of the Mother re-partnering into a violent relationship, are risks that the Court considers to be remote. Indeed, Mr F presented as an impressive witness, who enjoys and has a close relationship with the children. He also appears to have a close relationship with the Mother. He does not present any risk of harm to the children. The Mother is not a risk of entering into a future dysfunctional and violent relationship to which the children could be exposed. What happened in her relationship with Mr M is most unfortunate from the children’s perspective, but the risk of this reoccurring is not one that this Court needs to concern itself with. Nothing more needs to be said on this matter.
At paragraph 105 of the Report the Family Consultant hypothesised that it was possible that the Father was hoping to reconcile with the Mother. The Court discounts this. There was nothing in the Father’s evidence, or indeed any of the evidence before the Court, which would suggest that the Father hopes to reconcile with the Mother.
The Family Consultant noted that the children’s lives would be enriched if they could move between the parents’ households without stress, and have their needs met without feeling pressured to favour one parent or family situation over another. The Family Consultant was concerned that the Father had perhaps failed to understand that the children needed to be free to enjoy multiple important relationships with others, without that necessarily meaning that their relationship with him is lessened. From the Court’s perspective, however, there was no evidence before it to suggest that this continues to be an issue with the Father.
Returning to the parents, at paragraph 106 the Family Consultant records:
X and Y’ comments in interview indicate that the children are aware of the parental conflict, which is concerning. Both parents appear to blame the other for their personal distress, rather than locating the source of this in the inter-parental conflict, which is unfortunate. It seems that they have engaged in tit-for-tat behaviour, as evidenced for example by comments about Father’s Day and Ms Baldry’s birthday arrangements, which has all but ensured that their power struggle has persisted. They have been unable to establish a respectful co-parenting relationship which is unfortunate, because X and Y have a right to feel safe and secure in their relationships with both of their parents, and secure in knowing that Ms Baldry and Mr Baldry are capable of prioritising their (X and Y) needs above their own. It is extremely important that the parents refrain from polarising behaviour, such as discussing the other parent or the parenting plans with the children, or within earshot of the children. If Ms Baldry and Mr Baldry are unable to manage this, X and Y are unfortunately at risk of experiencing sustained difficulties, such as anxiety, depression, difficulty concentrating and learning, acting out and an array of other psychological problems.
The Court observes that what the Family Consultant described as the blaming behaviour, and the tit-for-tat behaviour, did manifest itself at times during the Hearing. Where relevant, this will be described in these Reasons below. The Family Consultant described the issues between the parents in terms of a “power struggle”. There is an element of truth to this description. The Court can only hope that the conclusion of these proceedings, including the emotionally laden financial proceedings, will enable the parents to put aside all issues of power.
The Family Consultant noted the Father’s concerns about the Mother’s alcohol abuse, and the Family Consultant correctly identified that this would be a risk for the children. As it turns out, however, there is no evidence before the Court to suggest that it is a risk of harm to the children and thus nothing more needs to be said about this issue.
In relation to the mental health of both parents, the Family Consultant noted the concerns that each made against the other. There was little evidence before the Family Consultant to suggest that the Mother had mental health issues, as contended by the Father. Indeed, the Court comes to the same conclusion – there is no evidence to suggest this. However, in relation to the Father’s mental health, the Family Consultant’s characterisation of this as having “been seriously compromised” is very much consistent with the evidence before the Court. To give credit to the Father, he acknowledged to the Family Consultant that he had previously been diagnosed with depression and had experienced suicidal ideation. As will be seen from the Court’s findings below, however, the Court will conclude that there is no present risk of harm to the children arising out of the Father’s mental health. The Family Consultant noted that if the Court found that the Father was in fact hoarding, this could reflect an anxiety disorder, but it was not within the Family Consultant’s expertise to say.
Nonetheless, the Family Consultant correctly identified that if the Father is suffering mental health issues, this is a matter to be carefully considered in terms of whether there are risks to the children. These risks were described at paragraph 110 of the Report:
Whether Mr Baldry’s mental health problems affect his parenting will require careful consideration, as there may be risks to X and Y in such a scenario. This is because children who have a parent with a mental health problem are at a heightened risk of adverse consequences, including developing mental health problems themselves, social and behavioural problems in childhood and adulthood, and they often become burdened with adult responsibilities and tasks. To his credit, it would appear that Mr Baldry has been proactive in seeking therapeutic support and treatment when necessary and, despite his unfortunate history of concerning poor mental health, he is assessed as an engaged and loving parent. Mr Baldry appears to be well supported by Ms N with whom he resides, which is considered a significant protective factor. Nevertheless, it cannot be discounted that Mr Baldry may experience a further decline in his mental health, which would need careful consideration. Depending on the Court’s finding in relation to this, Mr Baldry’s participation in a comprehensive psychiatric assessment may be of assistance and potentially determine whether Mr Baldry’s mental health poses risks to the children. A Psychiatrist would be best placed to provide such an assessment and able to recommend an appropriate treatment program, should there be any risks identified.
The Court agrees with the Family Consultant’s observations about the Father seeking therapeutic support and treatment, and being well supported. That continues to be the case after having heard all the evidence. True it is that the Father did not present to the Court the comprehensive psychiatric assessment suggested by the Family Consultant. The evidence about the Father’s mental health will be discussed below, but the Court will ultimately conclude that there are no present risks for the children.
The Family Consultant clearly had and expressed concerns about the viability of a shared care arrangement. She then went on to consider, however, whether the children would benefit from spending more time with their father. At paragraph 113 she notes:
This raises the question about whether the children would benefit from spending more time with their father. There are some factors, which would support an equal time parenting arrangement for this family. For example, the parents live in relatively close proximity to one another, Mr Baldry would potentially be further involved in the day-to-day parenting tasks for X and Y, and they would have increased contact with extended paternal family members, which would further support their emotional, social and psychological development. Based on some of the parents’, Ms N’s and the children’s comments in interview, however, it seems that much of the time the children spend with Mr Baldry, Ms N is responsible for their care and supervision, and they reportedly already spend significant time with the paternal grandfather. Mr Baldry’s desire to increase the amount of time he spends with the children could perhaps be mitigated by his commitment to reducing other activities and spend more time with X and Y when they are in his care.
At 114 she continues with the theme of equal time:
Equal time arrangements often work best when there is a high degree of communication, respect and consistency between the homes, when children are able to manage the plan, and when both parents are committed to it. Mr Baldry and Ms Baldry do not appear to have this capacity and the current arrangement already appears to be problematic for this family. It is necessary to balance the relative benefits of increasing the children’s time with Mr Baldry against the risks. Given the hostile nature of the relationship between the parents, which seems unlikely to change, coupled with their inability to communicate, it is difficult to imagine that there would be any significant gains to X and Y by amending the parenting plan to an equal time arrangement.
At paragraph 115 the Family Consultant suggests that even the current parenting arrangements could be improved, from the children’s perspective, as follows:
Ms Baldry has proposed the children spend time with Mr Baldry overnight each alternate Friday until Saturday at 10.00 AM and every other weekend, from Friday after school until Sunday at 5.00PM. She seeks to minimise any potential risks to the children by way of reducing the time they spend with their father. It is suggested, however, that X and Y would manage and likely benefit from a slight adjustment to the current regime, with provision for an uninterrupted block of time with Mr Baldry which limits the transitions proposed by Ms Baldry, and demands minimal communication between the parents. For example, it may best meet X and Y’s needs if they were to live with Ms Baldry and spend time with Mr Baldry each alternate weekend, from after school on Friday until before school on Monday, with all changeovers occurring at school, at least during the school term. This would potentially minimise the possibility of the children being further exposed to parental conflict.
At paragraph 116 the Family Consultant expresses the view that the children could cope, and would benefit from an arrangement that includes them spending each Tuesday overnight to Wednesday with their father.
At paragraph 117 the Family Consultant raised concerns about how shared parental responsibility could be achieved in a situation of distrust and conflict, such as the present one.
The Family Consultant’s recommendations commence from paragraph 118:
[118] No recommendation is made concerning parental responsibility.
[119] It is recommended that the children live primarily with Ms Baldry and spend time with Mr Baldry at Ms N’s residence from after school each Tuesday until before school on Wednesday and each alternate weekend, from after school on Friday until before school on Monday, plus half of the school holidays and on special occasions.
[120] It is recommended that during the school holidays changeover is facilitated by an agreed upon third party and occur in a public space.
[121] It is recommended that both parents be restrained from denigrating the other parent in the presence of, or within earshot, of X and Y, and they ensure that other persons be also restrained.
[122] It is recommended that Mr Baldry be restrained from approaching Ms Baldry at the children’s sports training and games.
[123] It is recommended that Mr Baldry and Ms Baldry be mandated by Court Order to attend post-separation counselling or an equivalent psycho-education course, which will assist them to disengage from one another.
[124] It is recommended that Mr Baldry be mandated by Court Order to engage in a comprehensive psychiatric assessment, and that the Psychiatrist is provided with a copy of this Family Report.
[125] It is recommended that, if there is evidence which indicates Ms Baldry abuses alcohol, further assessment occur to determine how such alcohol abuse impacts Ms Baldry’s parental capacity.
Thus, before the Hearing, the Family Consultant was recommending what is, in effect, a substantial and significant time arrangement that would see the children spend time with their father 5 nights out of 14.
By the time the Family Consultant was cross-examined at the Hearing the Mother’s proposal had changed and this reflected a number of different issues. For example, the Mother in cross-examination was not pressing the suggestion that the Father was a hoarder in the sense that he had some psychological or psychiatric condition. Indeed, in cross-examination she accepted that the condition of the former matrimonial home was, in her belief, a strategy by the Father to seek to minimise its value. In addition, in cross-examination the Mother accepted that at the time of the Family Report interviews the issue of relocation was not high on her agenda. What had caused her to change her mind, which she said occurred at the end of 2019, was that she was concerned about the high cost of living in Sydney, that the children wanted to change their schools, and that the whole family wanted to move closer to her family on the Region E.
The Court observes in passing that none of this evidence is found in the Mother’s Trial Affidavit. In addition, the Mother explained that her opposition to the Father having the children on Tuesday night, consistent with X’s expressed views, was that this would disrupt their routine. The Court notes, again in passing, that this would be a relatively minor disruption of routine compared to relocating the children to the Region E. Moreover, in cross-examination about the Father’s time with the children if relocation were permitted, she explained that she was open to extending the Father’s time with the children during school holidays, and possibly even reconfiguring weekends so that the Father would have additional time. The significance of this, the Court observes, is that it is inconsistent with the Mother’s case about risk of harm to the children in the Father’s care.
In any event, in cross-examination by the Independent Children’s Lawyer the Family Consultant indicated that she had read all of the material filed by the parents at trial, and was aware of their proposals, but nonetheless did not change her recommendations. When asked about the Mother’s proposal to relocate, the Family Consultant gave the impression that she did not think that the Mother’s proposal was a serious one, during the Family Report interviews. She acknowledged, however, that there were both positives and negatives associated with relocation. Indeed, from the Court’s perspective, the Family Consultant’s balanced approach to the Mother’s proposal for relocation was evident.
The Independent Children's Lawyer asked the Family Consultant to what extent her recommendations had been influenced by the Mother’s allegations about the Father’s controlling behaviour and his mental health issues. The Family Consultant explained that she placed significant weight on these issues in formulating her recommendation. The irony is, from the Court’s perspective that the centre of gravity in the Mother’s case shifted considerably once she was prepared to acknowledge in cross-examination that the Father could have more time with the children, especially during school holidays, if relocation were permitted. This is, with respect, an obvious inconsistency in the Mother’s case that was at no times satisfactorily explained.
The Family Consultant was able to acknowledge the importance to the children of their involvement with the paternal family. The Father’s aunt, in particular, was described as a strong, protective factor for the children. The children spoke fondly of their paternal grandfather. When asked whether she had the same sense in relation to the children’s relationship with the maternal family, this was clearly absent. She observed that the children do not have as much time with the maternal family, but acknowledged that they had not been interviewed and the Mother had considered them an asset in supporting her, particularly in the event of relocation.
When asked to explain why she proposed that the children spend time with their father from after school on Friday to before school on Monday, the Family Consultant explained the changeovers at school minimised the opportunity for the children to be exposed to parental conflict.
In explaining what the Family Consultant meant about both positives and negatives of a relocation, she explained that positives would include a lifestyle change, and a fresh start for the Mother that would enhance her happiness and parenting capacity. The negatives included the inevitable fact that the children would have to change school, make new friends, rearrange extracurricular activities, and Y would have to reengage with the services to assist him with his ASD. For Y in particular, his ASD makes him resistant to change, and he would experience greater stress. The other negative was that as the children grew older, and became more independent, they would make their own decisions about their time with their father, which, given the geographical distance, could well mean less time with him.
In cross-examination by Counsel for the Mother, the Family Consultant reacted to the proposition that if the Father was not in fact available for the children during his time with them, and if relocation were permitted, then this could actually make it easier for the Father to maintain his commitments to the children even on the Region E. The Family Consultant expressed, “possibly”. The Family Consultant accepted the proposition that the Mother’s relocation would enhance her wellbeing, which would enhance the wellbeing of the children, because they would benefit from a high-functioning parent who is more available to them. The Family Consultant accepted the proposition that quality time for the children was more important than quantity time.
It is clear from the cross-examination of the Family Consultant that she was well aware of the mental health issues pertaining to the Father, but, as the Court will find, there is no risk of harm to the children arising from the Father’s mental health.
As at the end of the Family Consultant’s evidence, but taking into account the other evidence in this case, the Court accepts the Family Consultant’s view about the time that the children should spend with their father. She consistently maintained that view. Implicit in her recommendations is the belief that relocation would not be in the best interests of the children.
In the section that follows the Court will consider the evidence of the parents and other witnesses as it relates to the primary and additional considerations set out in s.60CC of the Act.
Meaningful relationship
These children enjoy a meaningful relationship with both parents and the Court is satisfied from the totality of the evidence that this meaningful relationship will continue, whether they live in Sydney or on the Region E of New South Wales. This consideration is important, but not ultimately determinative in this case.
Is there a risk of harm to the children?
As foreshadowed earlier in these Reasons, the Court does not accept that there is a risk of harm to these children from their mother arising out of any aspect of her physical or mental health, or of the relationship that she is currently in, or is likely to enter into in future. Whilst the Mother displayed significant lack of judgment in entering into a post-separation violent dysfunctional relationship to which the children were exposed, she presented as having an awareness of the dysfunctional relationship that she had entered into. She loves her children and is unlikely to re-expose them to what she experienced in that relationship. There is no evidence to suggest that her current relationship is dysfunctional. There is no risk of harm to the children from their mother.
The Court concludes that there is no unacceptable risk of harm to the children from their father. The Mother’s case in this regard had several components.
The first component of the Mother’s case about the risk of harm to the children was her allegations about the Father’s coercive and controlling violence. Her allegations are not made out. Her Trial Affidavit was surprisingly minimalistic about the concerns which she had clearly instructed her Counsel to cross-examine the Father about. The evidence of financial control is inconsistent with her assertion. Markedly, her willingness to consider extra time for the Father during school holidays is also quite inconsistent with her belief about a risk of harm to the children arising out of coercive and controlling violence.
The second component of the Mother’s case about risk of harm to the children arose out of what seemed to be a generalised concern about the Father’s parenting capacity. The Court does not accept this. Again, it is inconsistent with her own proposals for the children to spend extended time with their father during school holidays. Most of the examples that she gave about the Father’s alleged parental incapacity can be explained as much by reference to the intractable parental conflict between them as by any objective basis for concerns about his ability to care for the children.
Her concerns do not take into account the supportive role played by the Father’s aunt, and paternal grandfather. Moreover, from the Court’s perspective, some of the concerns that she raised about the Father’s parenting capacity seemed to have a very strategic aspect to them. For example, in the Mother’s Trial Affidavit she describes an incident that occurred between 22 and 23 February 2020 in which, she asserts, the Father exposed Y to serious risk of harm as a result of the sinking of the boat in which the Father and Y travelled. Now, based on the Mother’s own evidence, what is clear that her information about the incident comes not from the Father, but from third parties, such as Y’s sports coach, and Y’s father, and the basis of their knowledge of these events is simply not clear.
The Mother explains that she was told that:
Mr Baldry and Y were in a boat at the O Town River when their boat flipped. Y nearly drowned, so one of the neighbours jumped into the water to get him. He had no lifejacket on.
The Mother further deposes that “I was able to retrieve CCTV footage of the incident.”
If this footage was retrieved, it was not tendered into evidence and the Court can only assume that it was not tendered into evidence because it would not have assisted the Mother’s case. The Mother relies on what Y said to her when he came home “I nearly died, Mum. I nearly drowned, but Dad told me not to tell you that I wasn’t wearing a lifejacket.”
The Mother deposes: “The respondent never informed me about the accident and still has not spoken about it today. I made the decision to report the incident to DFACS.”
Before exploring the cross-examination of the Mother about her evidence, the Court makes two preliminary observations. Perhaps the most significant evidence in relation to this issue is the Mother’s acknowledgement that the Father never informed her about the accident. It typifies the nature of the parental relationship. The other observation the Court makes is that it was curious that the Mother sought no restriction in her orders about sports activities involving Y. This is a sporting family, and it is clear from the evidence of the parents that sports was an important part of their recreational life as well.
The Mother was cross-examined about this incident. The Mother agreed she did not ring the Father to ask him about what happened. She said words to the effect, “No, it sounded like he was not in the right frame of mind and I thought he would retain the kids.” With respect to the Mother, her proposition is implausible. When Counsel suggested to the Mother that her only action was to make a complaint to the child welfare authority, the Mother agreed.
The note of the report that the Mother made to the Department was put to her in cross-examination. The note was in evidence. The Court accepts that it must be a narrative of what the Mother told the Department. The note reads:
…the Father and Y went out in a boat on O Town River yesterday morning. Both were not wearing lifejackets and the boat flipped and the Father and Y were thrown into the water. They had to swim to a jetty and a witness to the incident helped get them out of the water. The Father has not contacted (blank) no idea if Y has been hurt or if he was taken for medical attention.
The Mother agreed that the family had spent much time “mucking around on boats” for the entirety of their relationship. The Mother agreed that both children were good swimmers. The Mother agreed that she had heard that the children have gone water skiing. The Mother agreed that the Department took her report no further. When it was suggested to the Mother that she had no reason to doubt the Father’s capacity to look after the children, she did not respond.
The Father was, of course, cross-examined about this incident. The Court accepts his evidence about the circumstances in which the boat overturned, and both Y and he were thrown into the water. The Court accepts his evidence that both were wearing lifejackets.
This incident is important in many respects, but not because it establishes any risk of harm to the children in the Father’s care, or supports the Mother’s somewhat generalised contention about his lack of parenting capacity. What it confirms, beyond any doubt whatsoever, is that the parents’ lack of trust and ability to communicate with each other is not just palpable, but recent, and the Court is satisfied, ongoing. What is of concern to the Court, however, is the Mother’s acknowledgement made the day after the accident to the Department that she had “no idea if Y has been hurt or if he was taken for medical attention.”
Rather than inquire, the Mother reported to the Department. It is hard for the Court to avoid the inference that the proximity of this event to the Final Hearing was not a matter that the Mother took advantage of. Her failure to inquire about her son’s wellbeing after this incident is, quite frankly, extraordinary. It was almost as if the incident presented her with a tactical or strategic advantage in the proceedings, the value of which was more important than finding out whether Y was safe.
The Court does not accept the Mother’s generalised concerns about the Father’s lack of parenting capacity.
The third component of the Mother’s case about risk of harm to the children in the Father’s care is based on his mental health. When the evidence in its totality is closely examined, the Court concludes that the Father’s mental health was certainly problematic in 2015 and 2016, but there is no evidence to suggest that it continues today. There is simply no evidence before the Court of mental health episodes since 2015 or 2016. Not even the Mother records in her evidence, or makes any assertions about, such incidents occurring since then.
Indeed, once again the inconsistency between the Mother’s actions, and proposals, and her stated concerns are obvious. Even in her own case she accepted that she left the children in the Father’s care for a total of three weeks at the date of separation, arguably at the height of the Father’s mental health crisis, and went to cohabit with her new partner. It is more likely the case, the Court believes, that the Father’s contention that he was the sole carer of the children for four months is correct.
But whether it is three weeks, or four months, the fact is the Mother agreed with the proposition that she had no concerns at that time about leaving the children with the Father when she moved out of the former matrimonial home, despite his mental health issues. Moreover, her own proposal for the children to spend extended time with the Father in school holiday periods, is inconsistent with her stated concerns.
The Court accepts that the evidence of Dr J, the Father’s psychologist, did little to assist his case, and probably fuelled the Mother’s concerns. It became patently obvious during Dr J’s evidence that the Father had not been completely forthright in explaining his mental health history to him. Nonetheless, there is a consistency between all of the evidence of the Father’s treating mental health professionals, including Dr J. Whether or not the Father had, in fact, properly disclosed his mental health history to Dr J, the fact is that there is no evidence of current mental health issues, and all of his practitioners believe that he does not currently experience mental health problems.
The Court does not rule out the possibility of relapse, but it does not find that risk to be an unacceptable one in the circumstances of the case where the Father seems well supported, is engaged with the relevant treating practitioners, and appears to be living a stable life.
The Court’s overall conclusion about the Father’s mental health was that in 2015 and 2016, and possibly later, he suffered very poor mental health, which may well have been situational to a number of factors, including the decline of his business and the breakdown of his relationship. There is no evidence to suggest that the risk continues.
When all of the relevant evidence is taken into account, the Court finds that there is no unacceptable risk of harm associated with the children spending time with their father.
The children’s views
The Court does not believe that this is a determinative factor in this case. Nonetheless, the overall impression formed from the evidence is that X in particular does want to spend more time with her father. This case is not determined by reference to that.
The children’s relationships
The evidence before the Court indicates that these children have a very good relationship with both parents, with the Mother’s partner, with the paternal grandfather, and the Father’s aunt. With the exception of the Mother’s partner, as the relationship is relatively new, the children’s relationships with the other people are longstanding. One of the issues for the Court to consider will be how the competing proposals have an effect on these relationships.
Participating in decision-making, spending time and communicating with the children
Part of the Mother’s case, at least implicitly, was that the Father had missed out on opportunities to participate in decision-making, to spend time and communicate with the children, partly because of his work commitments, partly because of his mental ill health at the relevant time and partly because he had simply not prioritised his relationship with them.
A part of the Father’s case was the converse of the above, i.e., that the Mother had not facilitated him spending time with the children when he wanted to. There are underlying parental attitudes that will be explored below, but, for present purposes, the Court considers this matter to be equivocal, and not determinative of the decision it has to make.
Parental obligations to maintain the children
As will be seen in the discussion of the financial proceedings between the parties, the lack of transparency as to the Father’s financial affairs is a significant feature of this case. In the circumstances it is difficult for the Court to be satisfied that he has fulfilled his obligations to maintain the children and in this regard, the Court does not accept that merely paying child support, as assessed, is necessarily indicative of fulfilling his obligations. Nonetheless, the Court does not consider this consideration to be determinative of the issues between the parents.
The likely effect of changes in the children’s circumstances, including separation from parents and significant others
This is one of the most important considerations in this case, particularly in regards to the Mother’s proposal to relocate. It is an appropriate place to examine the Mother’s relocation proposal. The evidence about relocation in the Mother’s Trial Affidavit is found at various paragraphs, including 123, 138, 144, 146-154, 173-174. The Court accepts that the Mother’s proposal is put in good faith and it was not her intention, directly or indirectly, to seek to impede the children’s relationship with their father. Nonetheless, the Family Consultant, the Father and the Independent Children's Lawyer’s case did focus attention on the potential adverse impacts on the children of relocating.
For example, the Mother asserts that if she were to relocate to the Region E, certain named persons would be able to provide her assistance in caring for the children whilst she worked. There is no evidence from those who she asserts would support her which the Court considers an important omission in her case.
The Mother was not able to adequately reassure the Court that she had considered the potential adverse impact on Y, who suffers from ASD, of the very significant change in his life that would be brought about by relocation.
Annexed to the Mother’s Trial Affidavit is Y’s NDIS plan. A goal that is stated for, and presumably on behalf of Y, is that, “I would like to continue to improve my emotional skills.” In the column entitled “How will I achieve this goal?” there are the following statements:
·Y will continue to regulate his emotions.
·Y will continue to find suitable strategies to use when he becomes frustrated.
·Y will begin to recognise what is upsetting him and find suitable strategies to use prior to becoming frustrated.
In the adjoining column is found the following narrative under the heading “How will I be supported?”:
Y will be provided with opportunities at home, P School and Kids Focus to practice skills and strategies to support his goal. There will be a plan in place that assists Y and X to achieve the goal. The early childhood partner to community and other broader services, such as psychologists.
The Court would have liked to have seen evidence from the Mother that engaged more with the issue of how the stated goal would be achieved in a situation where almost everything will change for Y, in a relocation situation. The Court would have liked to have heard evidence from the Mother about how she would regulate his emotions in a situation of dramatic change? How she would cope with frustration in a changed circumstance? This evidence was not present.
The Mother did give evidence of course, about services she had made inquiries about, including at Y’s proposed school at Suburb Q, with services that she contended would be available to him. The corroborative evidence of this, however, was not there. Even if support services were duly found, and accessed after relocation, the question of Y’s ability to adapt has not been properly considered.
The transportability of the NDIS plan was also taken as a given, rather than properly explored in the evidence. What emerged from the evidence is that the NDIS plan took what seemed like years to approve. The Court would have liked to have been reassured that there was no unmanageable gap if relocation were permitted.
In cross-examination the Mother herself accepted the proposition that a child like Y requires routine, regularity, and does not like change. This was in the context of acknowledging that Y was a high-functioning ASD child. The Mother does not appear to have come to grips with this issue in the context of her own relocation proposal.
In the Father’s case it was submitted that the Court would have concerns about the Mother’s ability to encourage the relationship between the children and their father, when a geographical distance was created. The Court accepts this submission. In cross-examination the Mother gave no indication that the relocation might affect the children’s relationship with their father, paternal grandfather, and the Father’s aunt. With respect, it is inherently unlikely that the change contemplated by the Mother would not have an impact on these important relationships.
Moreover, in cross-examination the Mother steadfastly refused to consider accepting the Family Consultant’s recommendation that if relocation was not permitted, that the children should spend time with their father from after school on Friday to before school on Monday. One can understand the Father’s concern that this evidence might suggest to the Court that the Mother does not support the children’s relationship with their father.
The Mother was cross-examined about the travelling implications of her contended move. It seemed common ground that a relocation would create two and a half hours travel each way, but the Mother appeared unperturbed by this, explaining that she was prepared to share the travel and meet halfway. Respectfully, the Mother missed the point of the question. It was not about her inconvenience and need to travel, or about the Father’s inconvenience and need to travel. The focus of the question was based on the reality that every time the children spent time with the Father, they would be spending five hours each weekend travelling.
Again, the Father appeared to have a much greater understanding of the long term implications of this, than the Mother. He demonstrated a much greater insight about the potential impact of adolescence and individuation on the children, and the unrealistic expectation to ask them to continue to travel with the regularity proposed by the Mother, in those circumstances.
Whilst financial considerations pertaining to the relocation are not significant or determining factors, they are nonetheless relevant. Part of the Mother’s case for relocation related to what she considered to be improved finances. Her disclosure about the financial aspects of, for example, her partner lacked transparency. Her contention that rentals on the Region E were necessarily cheaper depends entirely on the Court accepting her evidence.
The Mother presented as optimistic about employment prospects on relocation, but ultimately had to agree in cross-examination that there was no guarantee of her having any income after relocation, and accepting that she might have to rely on Centrelink benefits. She accepted that she was expecting to receive money from the property settlement, but could not be sure how much and when.
Item 15 of the liabilities was agreed.
One of the most contentious issues in this case was item 16, the alleged loan from the paternal grandfather, Mr G. It is the Father's case that the current liability to his father at $217,500 should be acknowledged on the Balance Sheet. The Mother, Father, and paternal grandfather were all extensively cross‑examined about this issue. The Mother's evidence is unreliable. She was simply not in a position to know for certain whether, and if so to what extent, the paternal grandfather provided financial assistance to the Father's businesses, to the Father, and to the family. Her perspective was highly partisan and understandably motivated by self‑interest. Her denial of the paternal grandfather's generosity during the course of the relationship is, once again, understandable, given her partisan interests, but it is implausible. The Court is, in fact, satisfied that the paternal grandfather provided much more financial assistance than the Mother is prepared to accept.
The difficulty in the Father's case is that his evidence, and the paternal grandfather's evidence about this debt is confusing. Even after the Court has closely considered the evidence of the Father in cross‑examination, and the documents submitted to somehow quantify the debt, the Court is left with a profound sense that the paternal grandfather provided funds and was entitled to money out of the litigation settlement with Z Group, but the quantification is problematic.
Perhaps the most reliable evidence is that of the paternal grandfather himself. In his Affidavit, he deposes to ultimately settling the litigation between T Pty Limited and Z Group for $500,000 inclusive of costs in 2014. After payment of legal costs, he asserts that the company received $350,000. He deposes that he was entitled to one half of that payout, but that what, in fact, happened is that it was absorbed by the business which was, in fact, being conducted by him at the time because of the Father's mental health. The Court notes that if the paternal grandfather's evidence is ultimately accepted, this would explain how he contends he is entitled to be repaid a debt of $175,000.
The paternal grandfather further deposes to having purchased three engines for $17,500 from an auction house in 2016. These engines were sold through the business, but he was never reimbursed for the purchase price. It seems as if the $17,500 is part of the claim for $217,500.
The paternal grandfather deposes that in 2011 he purchased QQ Boat for $20,000, and that that was extensively refurbished by the Father and himself. He deposes to the boat having been sold for $50,000, and that he received none of the proceeds of sale thereof. It is unclear from his evidence, however, whether he was contending that he was entitled to all of the sale proceeds, or only a part. One difficulty with the paternal grandfather's evidence in this regard is that the invoice of sale to which he refers is both undated, and is, in any event, for $52,500. The Court notes that if the amount claimed by the paternal grandfather is limited to the three items identified above, i.e., $175,000, $17,500, and $20,000, that amounts to $212,500, and not the $217,500 referred to.
The Father's Affidavit evidence in this regard is even less transparent. He refers to a loan from his father in the sum of $292,000. He gives no explanation as to how this debt is calculated.
When the paternal grandfather was cross‑examined, he was insistent that he had won the contract with Z Group, he had prepared the tender and undertaken the negotiations, and that his son was the beneficiary of it through the company that was incorporated for the specific purpose of taking on the tender. He described himself as "the backbone behind the company … they couldn't get the contract without me." Nonetheless, he agreed that he was a silent partner in the business, and was neither a shareholder nor director of the company. The strong impression created from the paternal grandfather's evidence is that he felt (and, indeed, he probably had) a strong moral claim to half of the proceeds of the litigation settlement. Of course, that is not the same as a legal claim, particularly in the absence of any compelling evidence of an actual loan between the recipient of the litigation settlement, i.e., the company, and himself.
In relation to the RR Boat that he purchased, and that was subsequently sold through the business, in cross‑examination he agreed that he believed he should be entitled to half of the value of the boat when it was sold. He also explained that he did not know about the sale, and that his belief was that the Mother and Father sold the boat and kept the sale proceeds. Again, a very strong impression is formed that the paternal grandfather felt that he had a moral entitlement to the sale proceeds, but there is no discernible legal entitlement for repayment.
The Court notes that the paternal grandfather was not cross‑examined about his evidence relating to the purchase of the engines for $17,500, which were then sold through the business. The difficulty in the Father's case in this regard is that the invoice establishing the purchase is not in the paternal grandfather's name, but in the company's name.
Even before considering the Father's evidence in cross‑examination, the paternal grandfather's evidence does little more than create a strong impression of his moral entitlement, but not his legal entitlement. His belief that moneys to which he was morally entitled were, in effect, misappropriated by the Father (and the Mother he contends) for their own purposes, seems genuinely held. The Court cannot help but make this observation – this was a family business, the hallmark of which seemed to be lack of formality and absence of documentation. Perhaps one of the risks of such an informal business arrangement is that it is not very effective when families disintegrate, such as happened to the Father and Mother.
In any event, the Father's evidence did nothing to reassure the Court about the validity of the alleged loan to the paternal grandfather. The meticulous cross‑examination of Counsel for the Mother, of the Father on this issue, merely exemplified the real reservations the Court has about the Father's evidence in relation to financial matters generally. His evidence about his father's debt was inconsistent, both in his sworn evidence, and in cross‑examination. He did not provide to the Court a satisfactory explanation for how the liability was calculated at $217,500. In cross‑examination he acknowledged that he had originally contended that his father was owed $908,270, but this reduced to $270,000 as part of the claim became statute barred.
The Court reluctantly concludes that item 16 of the Balance Sheet must read nil, and that there is no legal basis for the debt to the paternal grandfather. The Court is reluctant, however, because the clear moral obligation is palpable. The Father, and indirectly the Mother, received the benefit of the paternal grandfather's generosity, both in terms of his skills, experience, contacts, business acumen, as well as his financial support. However, there is no basis for establishing a liability at law. If there was any other basis for the paternal grandfather's entitlement, equitable or otherwise, he was on notice that during the course of these proceedings, the issue of his entitlement would be adjudicated on, as between the Father and Mother. He was specifically put on notice because he had lodged a caveat on the property. If it becomes necessary for the former matrimonial home to be sold, the paternal grandfather will need to closely consider his position as regards the caveat because, from this Court's perspective, on the evidence before it, no caveatable interest is discernible.
In relation to item 17, the Father's NAB Visa debt in the sum of $10,000, the onus was on the Father to establish that this was a debt that was not statute barred, that related to the financial affairs of the parties before the date of separation, and was not, for example, incurred in the post‑separation period by himself. He failed to do so. Item 17 will read nil.
Item 18 is a debt owed to Matthews Folbigg Lawyers which, based on the evidence adduced by the Father himself, currently appears to be in the sum of $6,000. The Mother conceded $6,000 in the circumstances. Accordingly item 18 will read $6,000.
Item 19 is the D Pty Ltd debt in the sum of $52,353. D Pty Ltd has a caveat, but Counsel for the Mother contended that the debt was stale, and thus should not be allowed. The difficulty with this contention is that in the Mother's Amended Application filed 4 May 2020, at order 8(b), she herself proposed payment of the D Pty Ltd debt. In the circumstances, therefore, she can hardly be heard to say that it should now not be paid. The evidence before the Court establishes that even though D Pty Ltd repossessed a lot of its assets that were held by the business, presumably for the purposes of sale, there was a shortfall. There is no evidence that this debt has become stale.
Item 20 is an accounting debt. Whilst the Father produced documents in relation to the same, he went nowhere near establishing to the Court's satisfaction that these were debts that remained payable. This liability is not allowed.
Item 21 is a debt to KK Finance in the sum of $28,500. Again, the Father has failed to discharge the onus on him to establish that this debt was currently owing and payable, in the amount sought.
Items 22 to 24 are liabilities owing to the Australian Taxation Office. None of these debts are allowed. Once again, the Father has failed to discharge the onus on him. Items 22 and 23 appear to be debts arising after the date of separation. Item 24 is a debt of one of the companies operating the business, but it is not clear whether it is a debt of the company that went into liquidation, or a debt of the company that was deregistered. It is also not clear how the corporate debt inures to the Father. Hence, these debts are not allowed.
The Father, at item 25, seeks to include a liability to his aunt, Ms H, for $15,305. There was no evidence to establish this debt. The Court has no doubt that the Father was assisted by his aunt, including financially, but that does not mean it is a liability that should be taken into account for present purposes.
Items 26 and 27 are liabilities sought to be taken into account in the Mother's case representing a personal loan, and legal fees owing. The impression created is that these liabilities arose after separation, and whilst they are relevant to section 75(2) of the Act, they are not relevant for present purposes and thus will not be allowed.
The same conclusion arises in relation to item 28.
Item 29 is the Mother's parents' loan in 2015 to the Father. There seemed little opposition to this, and there is sufficient evidence to establish its basis. The parties clearly had the benefit of this money.
Item 30 is the Father's superannuation in an amount which is agreed. Item 31 is the Mother's superannuation. The Court will adopt her figure of $14,700.
Having regard to the Court's findings above, the Balance Sheet is as follows:
| Ownership | Description | Court’s Value | |
| 1 | H | B Street, Suburb C | $ 1,160,000 |
| 2 | H | BB Motorbike | $ 3,000 |
| 3 | H | C Boat | $ 12,000 |
| 4 | H | Household contents | $ 1,000 |
| 5 | W | Bank Accounts | $ 200 |
| 6 | W | DD Motor Vehicle | $ 5,500 |
| 7 | W | Household contents | $ 2,000 |
| 8 | H | Current business assets in AA Pty Ltd and/or business venture involving Mr G | $ NK |
| 9 | H | Motor vehicle | $ NK |
| Total: | $ 1,183,700 | ||
| ASSETS DISPOSED OF BY THE HUSBAND/ADD BACKS |
| 10 | H | EE Boat | $ 26,000 |
| 11 | H | FF boat transferred to Mr G post separation | $ 0 |
| 12 | H | GG Boat | $ 0 |
| 13 | H | HH Motorbike | $ 0 |
| 14 | H | Approx 50 motors and assets owned by AA P/L | $ 0 |
| Total: | $ 26,000 | ||
| Total assets (non-superannuation): | $ 1,209,700 | ||
| LIABILITIES | |||
| 15 | H | Mortgage to NAB | $ 682,000 |
| 16 | H | Loan from Mr G | $ Nil |
| 17 | H | NAB Visa | $ Nil |
| 18 | H | Matthew Folbigg Lawyers | $ 6,000 |
| 19 | H | D Pty Ltd | $ 52,353 |
| 20 | H | JJ Accounting | $ 0 |
| 21 | H | KK Finance | $ 0 |
| 22 | H | ATO Tax debt | $ 0 |
| 23 | H | ATO - PAYG | $ 0 |
| 24 | H | ATO | $ 0 |
| 25 | H | Loan from Ms H | $ 0 |
| 26 | W | Westpac personal loan | $ 0 |
| 27 | W | Legal Fees Owing | $ 0 |
| 28 | H | Legal Costs and Disbursements | $ 0 |
| 29 | H | Wife’s parent’s 2015 loan to husband | $ 10,000 |
| Total liabilities: | $ 750,353 | ||
| TOTAL NET ASSET POOL (non-superannuation assets): | $ 459,347 | ||
| SUPERANNUATION | ||||
| Member | Name of Fund | Type of Interest | Court’s value | |
| 30 | H | Super Fund LL | Accumulation | $ 23,613 |
| 31 | W | Super Fund MM | Accumulation | $ 14,700 |
| 32 | H | Super Fund NN | Accumulation | $ Not known |
| 33 | H | Super Fund OO | Accumulation | $ Not known |
| Total superannuation: | $ 38,313 | |||
| TOTAL NET ASSET POOL (superannuation + non-superannuation assets) | $ 497,660 | |||
This means that the total net assets including notional assets added back total $497,660. This consists of $38,313 superannuation assets, and $459,347 net non‑superannuation assets. The Court notes that the case was presented on the basis that there was a single pool of assets to be divided between the parties, and that is an approach the Court is willing to accept.
Assessment of contribution
In closing submissions, Counsel for the Mother contended that contributions should be assessed in the Mother's favour as to 60% to the date of the Hearing. The closing submissions on behalf of the Father likewise contended that contributions should be assessed in his favour at 60%.
It is hard to understand the basis of the Mother's submissions as to contribution, having regard to the evidence. Even her case proceeded on the basis that at the time of cohabitation, the Father had equity in the sum of $77,000 in what was their first family home. The evidence suggests that this found its way into what is the current former matrimonial home. He brought a business into the relationship. The Court does not accept the Father's evidence, however, that he brought other substantial assets into the marriage, including cash savings.
Part of the Father's case about the greater contribution that was made by him relates to the financial assistance provided by his father. The Court has already made a number of observations about the financial assistance provided, and how it cannot be characterised as a loan due and payable to the paternal grandfather. Nonetheless, the reality of his contribution cannot be denied on the evidence before the Court. Even in the post‑separation period, it is clear from the evidence that the Father's disclosed income was never able to service even the mortgage on the former matrimonial home, let alone the other liabilities that may have existed at the time. There is no reason not to accept the Father's evidence that it was the financial support provided by the paternal grandfather that resulted in this substantial liability being serviced.
One submission made on behalf of the Father does need to be recognised. On his behalf it was submitted that the businesses conducted were a family enterprise conducted by the Mother and Father, with the assistance of the paternal grandfather. The submission made is that the Mother enjoyed the fruits of the business when it was successful, and now needs to face the fact that the business failed and that there are consequences of that. There were times during the cross‑examination of the Mother when she sought to distance herself from the businesses. Indeed, at one point in cross‑examination when it was suggested to her that she worked in the "family business", she replied words to the effect: "It was Mr Baldry’s business" and yet, just a little later in cross‑examination, when it was put to her that it was a family business, the context clearly establishing that that included her, she agreed. She sought to minimise, in cross‑examination, the role she played in the business, particularly in the period of the Father's mental ill health. She denied, for example, that she deposited moneys into the business bank account, a denial which is simply implausible in circumstances where, for all practical purposes, she had the responsibility for the daily conduct of the business.
When the evidence about contribution is viewed objectively, the fact is that both the Mother and the Father contributed financially and non‑financially, directly and indirectly, and as homemaker and parent, to the best of their ability. The Father may well have made a greater financial contribution, but the Mother certainly made the greater contribution as homemaker and parent. The Father became mentally unwell, through no fault of his own. The Mother provided the appropriate support during this period, not just to him personally, but by “stepping up” in the business. There is no basis, however, for somehow contending that the failure of the business was attributable to something the Father did, or did not do.
The Court accepts that there are issues about the Father's non‑disclosure which need to be considered, but not in the context of assessing contribution.
Having regard to the different types of contribution made by the parents, the original contribution brought into the relationship by the equity the Father held in what was the original family home, and in particular, the support the family received through the paternal grandfather, the Court assesses contribution in the Father's favour as to 55%.
An adjustment under section 75(2)
Both parents contended that there should be an adjustment in the Mother's favour of 15%. In the Father's case, the concession was made primarily by reference to the fact that the Mother would have the main responsibility for caring for the children. When one has regard to the Mother's case outline document, there is at least implied a recognition that the net pool of assets was likely to be relatively small and thus, this was in itself something which operated in the Mother's favour under section 75(2).
In closing submissions, the Mother's Counsel made it clear that the 15% adjustment also included an adjustment based on the non‑disclosure. Indeed, Counsel described the Father's non‑disclosure as palpable, and it is clear that she was contending that the Court could not rely on his evidence about either his income and expenditure, or his assets and liabilities.
The Court accepts the figures proposed by both parties. An adjustment under section 75(2) in favour of the Mother will be made as to 15%.
A just and equitable order
If contribution is assessed at 55% in favour of the Father, and section 75(2) as to 15% in favour of the Mother, it means that her entitlement would be 60%, provided the Court is satisfied that this would be just and equitable to the parties.
It is necessary to consider the submission made on behalf of the Mother, however, that given the size of the pool of assets, it was not only open to the Court to give her 100% of the known assets, but that, in fact, the Court should do so. The Court accepts that it is a small pool of assets. This is not because of anything the Father, or the Mother, have consciously done, or failed to do. The reasons for the demise of the business have already been explored. The Court is troubled by the submission that it is the Father's "incredible lack of disclosure about the business" (to use the words of Counsel for the Mother) as the basis for increasing the alteration of interests from 60% to 100%.
Firstly, there is an element of double‑dipping, because Counsel for the Mother acknowledged that part of the 15% adjustment under section 75(2) was because of the Father's non‑disclosure. Secondly, however, the reality of the financial circumstances of the parties needs to be taken into account. In reality, both will have very little with which to re‑establish themselves, and both have financial resources to draw on in order to do so. The Father has financial resources in the form of the paternal grandfather, and the Father's aunt.
The Court is satisfied that the Mother has a financial resource in terms of her partner. Both parties have liabilities that are not accounted for in the Balance Sheet. If the Court's allocation of liabilities exclusively to the Father (by not including them on the Balance Sheet) were to result, hypothetically, in a creditor somehow pursuing this debt, then he would be disproportionately liable for that debt.
In any event, s.79 requires the Court to make a just and equitable order so far as both parties are concerned, and not just one. A finding of non‑disclosure, even "incredible" non‑disclosure, does not give the Court carte blanche to punish the recalcitrant party. It cannot be just and equitable, for example, to allocate a finite cost to non‑disclosure which cannot be quantified. Furthermore, the questions of the Father's conduct in the proceedings ought properly to be considered in the context of a costs order, bearing in mind that s.117 of the Act does not necessarily make contingent on the making of a costs order a particular outcome of the proceedings.
For these reasons, therefore, the Court concludes that no further adjustment in the Mother's favour is just and equitable in the circumstances.
Having regard to the Court's findings, therefore, the Mother becomes entitled to 60% of the total net pool of assets, which is $298,596.
On the assumption that the Father retains the former matrimonial home, then, according to the balance sheet as found by the Court, and thus attributing to him items 1, 2, 3, 4, 10, 15, 18, 19 and 30, the net value of the assets he currently holds totals $485,260. Conversely, according to the Balance Sheet, the Mother retains items 5, 6, 7, 29 and 31, the net value of which is $12,400. The Mother's 60% entitlement, however, is $298,596. The Father's 40% entitlement is $199,064. This means that by way of alteration of property interests, the Father would have to pay to the Mother $286,196. The Father would be responsible for the mortgage on the property, as well as the Matthews Folbigg and D Pty Ltd debts. The Mother would be responsible for the loan from her parents.
The Father indicated throughout the Hearing that he wished to at least to attempt to retain the former matrimonial home. In cross‑examination, he accepted that this was not possible without the financial assistance of his father, and possibly even his aunt. Whether their financial support extends to the amount in question is not clear. Nonetheless, he will have the opportunity to raise these funds and to, in effect, pay out the Mother. The Court is prepared to give him 10 weeks from the date of these Orders to pay out the Mother, failing which, firstly, interest will accrue on the amount outstanding and, secondly, Orders for sale of the property will come into effect.
The orders sought by the Mother required the Father to vacate the property, and for her to then be appointed as trustee for sale of the former matrimonial home. The Court is not satisfied that the conduct of the Father in this litigation, or any evidence that he gave during the Hearing, would warrant such a drastic order at this stage. As already foreshadowed, issues of non‑compliance and non‑disclosure are best dealt with in the context of a costs application. There is nothing in the evidence of the Father which would cause the Court to be presently concerned about his willingness and capacity to comply with Orders for alteration of property interests. One would have thought, for example, that the prospect of enforcement proceedings against him, including an application that the Mother be appointed as trustee for sale, as well as the interest rate applicable to the Order for payment, would be a substantial incentive on his part to comply with the Order. Leave will certainly be granted to relist as regards the implementation and enforcement of these Orders.
The Court is satisfied that these Orders are as just and equitable as the circumstances of the case allow.
I certify that the preceding two hundred and twenty-seven (227) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 15 July 2020
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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Costs
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Remedies
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Jurisdiction
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Consent
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