Beckett & Beckett
[2017] FCCA 608
•28 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BECKETT & BECKETT | [2017] FCCA 608 |
| Catchwords: FAMILY LAW – Parenting and property – where concerns about the father’s mental health – whether supervision required, and if so, on what terms – assessment of contribution and future needs – where father had proceeds of a total permanent disability claim – just and equitable order. |
| Legislation: Child Support (Assessment) Act 1989, ss.117, 123, 123A Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 75(2), 79 |
| Cases cited: Bevan & Bevan [2013] FamCAFC 116 Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395 Irving & Parkes [2015] FCCA 3049 Martell & Allard [2012] FMCAfam 326 MRR v GR [2010] HCA 4 |
| Applicant: | MS BECKETT |
| Respondent: | MR BECKETT |
| File Number: | WOC 315 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 22-25 August 2016 |
| Date of Last Submission: | 6 February 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 28 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | Rita Thakur & Associates |
| Counsel for the Respondent: | Mr Gardiner |
| Solicitors for the Respondent: | Slater & Gordon Lawyers |
| Counsel for the Independent Children's Lawyer: | Mr Jackson |
| Solicitors for the Independent Children's Lawyer: | Maguire & McInerney Lawyers |
ORDERS
Parenting
All previous orders in these proceedings are hereby discharged
That the Mother have sole parental responsibility for the children, X (born (omitted) 2007) and Y (born (omitted) 2009).
That the children live with the Mother.
Conditional upon the terms set out in Orders 5 and 6 below, the children spend time with the Father as follows:
(a)During school terms 1 and 4, each alternate Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm;
(b)During school terms 2 and 3 for the purpose of participating in weekend sport:
(i)each third Friday afternoon commencing at 4:00pm until the following Sunday afternoon at 5:00pm, (being the second and fifth and eighth weekend of such school terms);
A.to be suspended on any weekend coinciding with Mother’s Day.
B.to be suspended if such a weekend falls on Y’s birthday, from 9:00am until 5:00pm on that given day.
(ii)from Friday 4:00pm on the weekend coinciding with Father’s Day until Sunday 5:00pm if not consistent with weekend as set out in Order 4(b)(i).
(iii)for the birthday celebrations of: Y if it does not coincide with the period set out in Order 4(b)(i):
A.from 9:00am until 5:00pm if it falls on a weekend;
B.from after school until 7:30pm if it falls on a weekday.
(iv)The parties will aim as best as possible to ensure that the Father’s weekend time will coincide with the Queen’s Birthday weekend and Father’s Day, and will not coincide with Mother’s Day.
(c)During school holidays:
(i)For the first half of each mid-year school holidays in years ending in an even numbered year from the last Friday of the school term at 4:00pm until 4:00pm on the following Friday.
(ii)For the second half of each mid-year school holidays in years ending in an odd numbered year to commence at 4:00pm on Friday and conclude on the following Friday at 4:00pm.
(iii)For the first half of each end of year school holidays in years ending in an even numbered year to from the last Friday of the school term at 4:00pm until 4:00pm on 2 January.
(iv)For the second half of each end of year school holidays in years ending in an odd numbered year to commence at 4:00pm on 2 January and conclude on the Friday at 4:00pm before school is to commence.
(v)Time in Orders 4(c)(iii)-(iv) be suspended for the period from Christmas Eve at 12 noon until Boxing Day at 8:30pm.
(vi)From Christmas Eve at 12 noon until Christmas Day at 5:30pm in years ending in an even number.
(vii)From Christmas Day at 5:30pm until Boxing Day at 8:30pm in years ending in an odd number.
The Father’s time during school term weekends with the children as set out in Orders 4(a)-(b) is conditional upon:
(a)The Father living for two years from the date of the Orders in the residence of his parents, (being both or if relevant either one), Mr B and Ms S, if his parents both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one of his parents remain in the ACT during the course of that spend time period with the children.
(i)In the event that both of the Father’s parents are not available to remain in the ACT during his spend time period, then where relevant any overnight spend time period shall take place at either the Father’s brother’s Mr M or Mr N‘s residence, if his brothers both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one brother remain in the ACT during the course of that spend time period.
(b)That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
(c)That for a further three years from the date of these Orders, the Father shall continue regular and appropriate treatment and/or counselling for his mental health, unless there is a written advice from a treating psychiatrist that such treatment and/or counselling is no longer required with such a condition does not prohibit the Father from continuing such treatment and/or counselling beyond the three year period.
(d)That within seven days from the date of these Orders the Father is to provide his treating doctors (including psychiatrists) and psychologists with an authority to ensure that the Mother has access to any records of attendances and medication as prescribed.
(e)That the Father is not to take the children on any animal hunting events.
That the Father’s time during school holidays with the children as set out in Order 4(c) is conditional upon:
(a)If the time takes place in the ACT, the same conditions as such out in Order 5(a) above.
(b)If the time takes place outside the ACT, for the first two years from the date of the Orders any one or more or the Father’s parents or brothers shall accompany the Father and the children on any such interstate (or ‘interterritory’) trips including holidays.
(c)That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
(d)That the Father is not to take the children on any animal hunting events.
That for the purpose of changeover the Father and the Mother will facilitate changeover at (omitted) Service Station.
The parents are restrained from denigrating the other in the presence of the children.
Both parents are prohibited from publishing any information on social media that refers in any way to the other parent.
That the Mother shall ensure that the Father is kept informed by way of email as soon as it is reasonably practical of:
(a)Any serious medical problems or illnesses suffered by the children;
(b)Any specialist medical appointments;
(c)Any significant social, school or religious functions which the children are to attend to which the Father shall be entitled to attend;
(d)The details of any sporting body(ies) that the children are involved in;
(e)Any other important matter relevant to the welfare of the children.
The Mother shall provide authorities to the children’s school and medical providers to enable the Father to receive any relevant information otherwise provided to parents.
The parents shall keep the other informed of their respective residential addresses, contact telephone numbers and email addresses and is to inform the other of any change to same within 7 days of such change occurring.
The Father is entitled to attend all events involving the children including, but not limited to:
(a)Sporting fixtures;
(b)Extracurricular activities that allow for parent attendance or participation;
(c)School functions and events that allow for parental attendance or participation.
Property
Within 60 days, the Father shall do all acts and sign all documents necessary to transfer to the Mother his entire right title and interest in the parties' former matrimonial home known as and situated at Property H (being the whole of the land contained in Certificate of Title folio identifier (omitted)).
Simultaneously with the Father’s compliance with Order 14 above, the Mother shall do all acts and sign all documents necessary to refinance into her sole name the mortgage loan secured on the property in the parties' joint names with (omitted) Bank and thereafter the Mother shall indemnify the Father and forever keep him indemnified against any liability in respect of the home including but not limited to the payment of water and council rates, mortgage repayments and insurance payments.
Within 30 days, any funds held on trust or in a controlled monies account by Slater & Gordon Lawyers in respect of the TPD claim be released to the parties as follows:
(a)$77,380.48 to the Mother; and
(b)remainder to the Father.
The Mother shall be the sole owner of and solely responsible for:
(a)any funds contained in the Mother's (omitted) account (a/c (omitted));
(b)the Mazda (omitted) (registration number (omitted)).
The Mother is declared to have sole right title and interest in any interest in her name in the (omitted) Super fund.
The Father shall be the sole owner of and solely responsible for:
(a)any funds contained in the Father's (omitted) Bank account (a/c (omitted));
(b)the Mitsubishi (omitted) ute (registration number (omitted));
(c)the (omitted) boat (registration number (omitted)).
Any funds held on trust or in a controlled monies account by Slater & Gordon Lawyers in respect of the Father’s superannuation entitlements shall be forthwith released to the Father and retained by him for his sole benefit to the exclusion of the Mother.
The Mother and the Father shall have the sole right title and interest in:
(a)Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively.
(b)Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
The Mother’s application for child support pursuant to s.123 of the Child Support (Assessment) Act 1989 be dismissed.
Leave be granted to the parties to approach Chambers to relist the matter on 14 days’ notice as regards the interpretation and implementation of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Beckett & Beckett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 315 of 2014
| MS BECKETT |
Applicant
And
| MR BECKETT |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the Orders that the Court has made in a dispute between parents about their children, and how their property ought to be divided. The Applicant is the wife, a 37 year old (occupation omitted) who lives in the (omitted) region of New South Wales. The Respondent is her husband, a 42 year old retired (occupation omitted) who lives in the Australian Capital Territory. They have two children, X who is 9, and Y who is 7.
The parents commenced cohabitation in 2003, married in 2006, and separated in February 2014. They thus lived together for 11 years.
The litigation between the parents has been very difficult for them. They have both had difficult lives, especially the Father, and both worked in highly stressful employment as (occupations omitted). In the course of their work they were exposed to many traumatic events. These events have had an impact on them in terms of who they are, how they think and react, and their relationship with each other. It is quite possible that this litigation has brought out the worst in both parents, and that they have said and done things that will, in the fullness of time, be seen to be out of character. Regrettably for X and Y, they have often been caught in the middle of this conflict. Moreover, they have experienced the fallout of the highly difficult and stressful jobs that their parents undertake.
The Court must decide how much time the children spend with their Father, and under what circumstances. It is, in effect, a risk assessment exercise. The decision was ultimately informed by an abundance of expert evidence. The Court has preferred this expert evidence over each parent's own perceptions of the risk involved.
The financial dispute between the parents is complex, but made much more complex as a result of the emotional overlay in this case. The specific issues raised in the financial dispute will be identified, and discussed below.
Background
When the parents first met the Father already had a property in (omitted), in the ACT. In October 2003, the year the parties had commenced cohabitation, the Father received a $55,000 workers compensation payment. The year after they commenced cohabitation, they purchased what became their family home in (omitted), ACT. In 2006 the Father sold his property at (omitted) and applied the sale proceeds towards reducing the mortgage over the (omitted) property. They sold the (omitted) property in 2007, the year after they married, and then purchased in the (omitted) of New South Wales. X was born that year, and Y two years later.
When the parties were living in the (omitted) of Sydney, the Father was working with the (employer omitted) in Sydney, and the Mother at (employer omitted).
In 2008, the Father disclosed to the Mother that he had been sexually abused by a (omitted) at age 13. He commenced proceedings for compensation which resulted in a payment to him of $85,000 in 2011.
In 2010, the parties sold the family home in the (omitted) of Sydney and purchased the land in the (omitted) on which was subsequently constructed what is presently the former matrimonial home. Whilst the house was being built they rented for a while in the (omitted), as well as living with the maternal grandparents for about six months.
Late in 2011, it appears that the Father ceased working with the (employer omitted). He was subsequently diagnosed with post‑traumatic stress disorder and major depressive disorder. In July 2012, the Father made what the Court finds to be the first attempt to take his own life by way of overdose of medication. He was hospitalised. In December 2012, the Father was again admitted to hospital for mental health reasons.
In November 2013, the Father made a second attempt to take his own life, which was witnessed by both children, and the Mother. He attempted to hang himself. Unquestionably, this was a highly traumatic event for the parents and for the children. He was hospitalised for three weeks. Within a few months the children, but especially X, started showing signs of the emotional stress they were experiencing.
Earlier in 2013, the Father received $55,000 by way of workers compensation. In November 2013, the Mother herself was on workers compensation for a period of four months.
In February 2014, the parents separated. The Father moved to live with the paternal grandparents in the ACT whilst the Mother remained with the children in the former matrimonial home.
In 2014, the Mother commenced the present proceedings. The Father received a partial total and permanent disability payment of $180,000, and a payment from (omitted) Super of $108,000. These payments were in partial settlement of his total and permanent disability cover, and superannuation claims.
On 22 May 2014, His Honour Judge Jarrett, while sitting in the Wollongong Registry of the Court, made interim Orders that provided for the children to spend supervised time with their father. By September 2014, the parents entered into Consent Orders allowing for increased supervised time with the Father. By August 2015 the parents had consented to Orders for the children to spend alternate weekends with the Father, on a supervised basis.
Outline of Reasons for Judgment
These Reasons for Judgment will be divided into two distinct sections. The dispute about the children will be dealt with first, the financial dispute second. The applicable law relevant to each part of the dispute will be separately stated. As the evidence in both aspects of the case is almost the same, the evidence will be set out in the first part of the judgment. Where it is necessary to make observations about credit, those findings apply to both aspects of the case.
The evidence and the hearing
In the Mother's case, she relied on the following evidence:
·Amended Initiating Application, filed 21 July 2016;
·Updated Financial Statement, filed 16 August 2016;
·Affidavit of Ms Beckett, sworn 15 August 2016;
·Affidavit of Ms E, sworn 20 May 2014;
·Affidavit of Mr D, sword 27 November 2014; and
·Affidavit of Ms M, sworn 11 August 2016.
In the Father's case, he relied on the following evidence:
·Amended Response, filed 16 August 2016;
·Financial Statement, filed 16 August 2016;
·Affidavit of Mr Beckett, sworn 14 August 2016;
·Affidavit of Ms S, sworn 11 August 2016;
·Affidavit of Mr B, sworn 11 August 2016;
·Affidavit of Mr M, affirmed 11 August 2016; and
·Affidavit of Mr N, affirmed 11 August 2016.
The children were represented by their Independent Children's Lawyer, Ms Pearson. The evidence in the Independent Children's Lawyer's case consisted of two reports from Dr A, a Consultant Child, Family and Adult Psychiatrist. His reports are dated 29 July 2015 and 22 June 2016.
In the Mother's case, only the Mother was required for cross‑examination.
In the Father's case, the Father, his parents and his two brothers, Mr M and Mr N, were required for cross‑examination.
In the Father's case, evidence was also led from his treating psychologist, Dr S, and treating psychiatrist, Dr E. Their reports were in evidence. They were both cross‑examined.
Dr A was extensively cross‑examined.
A considerable volume of documents were tendered in evidence, including:
·Article titled ‘Compensation for lawyer after wrongful arrest’;
·Bundle of Facebook messages regarding Four Corners show;
·Transcript of Four Corners ‘(omitted)’ program;
·Letter from Dr E to Ms J dated 24 May 2016;
·Letter from Ms K to Dr E enclosing draft statement of the Father;
·Documents produced under subpoena to (employer omitted) filed 26 July 2016;
·Batterham & Co Settlement Statement dated 21 June 2006;
·(omitted) Bank Mortgage Account Summary Report dated 3 January 2014;
·DVD recording of Four Corners ‘(omitted)’ program;
·Psychologist Report by Dr S dated 6 July 2016;
·Psychiatric Report from Dr E to Husband's Solicitor dated 26 May 2016;
·Exhibit of further material produced by (employer omitted) in relation to Ms Beckett;
·Respondent Husband’s tender bundle;
·Psychiatric Report by Dr M to (omitted) dated 18 June 2012;
·Psychiatric Report by Dr R to (omitted) Insurance dated 17 December 2012;
·Psychiatric Report by Dr E to Ms K dated 23 August 2012;
·Extract of school records from (omitted) Public School;
·Further extract of school records from (omitted) Public School;
·Exhibit of documents produced under subpoena from (omitted) (psychologist) in relation to X and Y;
·Mother's personal file from (employer omitted); and
·Expert’s Reports by Dr A dated 4 August 2015 and 25 July 2016.
At the hearing the Mother was represented by Mr Millar of Counsel; the Father was represented by Mr Gardiner of Counsel, and the Independent Children's Lawyer was represented by Mr Jackson of Counsel.
The hearing proceeded over four days between 22-25 August 2016. Whilst submissions in the parenting part of the case were made orally on the last day of the hearing, directions were made for written submissions in relation to the financial aspect of the case, with the last submission received on 12 October 2016.
Parenting proceedings
The Mother's proposal in relation to X and Y is contained in a Minute of Order provided by her Counsel on the last day of the hearing. It is reproduced in the first schedule to these Reasons for Judgment. In effect, she proposed that she have sole parental responsibility and that the children live with her. The children would spend supervised time with their father from 4:00pm Friday until 4:00pm Sunday every third weekend of the school term, and for three continuous days and two nights during school term holidays with such time to be an extension of the Father's school term weekend time. There were provisions for school holidays and special occasions. The Mother proposed members of the paternal family as the nominated supervisors. The Mother's proposal was, in effect, an open‑ended supervised spends time with order.
The parenting Orders proposed by the Father are contained in his Amended Response filed 16 August 2016. Whilst he agreed that the children should live with their Mother, he proposed equal shared parental responsibility, and that the children spend time with him immediately, on an unsupervised basis. He proposed from 5:00pm Friday until 5:00pm Sunday each alternate weekend, half the school holidays, and special occasions. He proposed that changeover take place at (omitted). The parenting order that he proposes is also reproduced in the first schedule to these reasons.
The Minute of Order proposed by the Independent Children's Lawyer as at the final day of the hearing is also reproduced in the first schedule to these reasons. The Independent Children's Lawyer proposed that the children live with the Mother, and that she have sole parental responsibility. The Father would spend time with the children depending on, in effect, whether they were participating in weekend sport, which the Independent Children's Lawyer anticipated would be in terms 2 and 3. Hence, the proposal was, in effect, that during terms 1 and 4 the children would spend time with their Father each alternate Friday afternoon from 4:00pm until Sunday afternoon at 5:00pm. However, during school terms 2 and 3, it would be each third Friday afternoon from 4:00pm until Sunday at 5:00pm. The order makes provision for special occasions, and for school holidays.
The Father's time with the children would be subject to a number of conditions which included, for example, continuing to live for two years at the home of the paternal grandparents, with the alternative that if they were not available to supervise, in a general sense, the Father's time with the children, other members of the paternal family could step in. The detailed conditions proposed by the Independent Children's Lawyer are set out in the Minute.
The applicable law
In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘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 said
8. Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“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." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
(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.”
Sub-section (3) explains what is meant by the phrase “substantial and significant time”.
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.
General observations and findings based on the evidence of the parents
These Reasons for Judgment have already foreshadowed some of the Court's observations in relation to how both the Mother and Father experienced the breakdown of their relationship, and the subsequent proceedings. For the sake of X and Y, the Court genuinely hopes that its observations are correct, and that the parental behaviour towards each other is, in fact, time limited to these proceedings.
The Court can only hope that the resolution of this Court case, and the passage of time, may help to heal some of the deep hurt that exists between the parents. The fact is that they both acted towards each other in a most bitter, sometimes malicious fashion, with little regard to what impact this might have on the children they love. These Reasons for Judgment will deliberately omit what it regards as unnecessary details about the events in question. Nonetheless, it is necessary to make observations about credit issues.
For the most part, the Mother was the more reliable historian. This is unsurprising given the extensive mental health problems experienced by the Father since 2011. He was deeply traumatised by experiences in the course of his work as a (occupation omitted). The consequential mental health problems that he experienced were clearly exacerbated by a descent into alcohol and drug abuse. It is somewhat unsurprising, therefore, that some of his evidence is clouded by uncertainty. In relation to financial matters, therefore, the Court prefers the Mother's evidence over that of the Father, unless there is independent corroborative evidence.
Both parents, however, were deeply affected by the clouding of their judgment. The Mother's deeply felt emotional disdain for the Father, no doubt explicable to the trauma that she and the children directly, or indirectly suffered through the Father, nonetheless resulted in her not being able to see anything positive that the Father could add to the children's lives. It clouded her judgment about the assessment of risk to the children. Much to her credit, and thus a far better reflection of who the Mother actually is as a person, is the Court's acknowledgement that the Mother persisted in facilitating the children's relationship with their Father. This was despite the fact that the Father did some very mean things to her, and indirectly to the children.
The Father's judgment was also clouded, of course. He resented what he perceived to be the Mother's controlling of his relationship with Y and X. He could not understand that she would not accept his protestations that he was mentally well – indeed a new man. His perception of the Mother's financial claim, for example, failed to recognise that her perspective necessarily included longer term issues about the welfare of the children.
The Father was often an unimpressive witness. He was easily aggravated in the witness box. For the most part he showed self‑control, but occasional flashes of anger and impatience became apparent. He was frequently unresponsive in cross‑examination. Due allowance must nonetheless be made for the fact that some of this behaviour is explicable by reference to his mental health problems. His evidence about financial matters is more unreliable, as compared to that of the Mother.
Notwithstanding these comments, the Court is of the view that there is hope for these parents, and that life can return to a sense of normalcy in the fullness of time.
The evidence of Dr A
The evidence of Dr A in this case becomes important, not just because he is both independent, and expert, but because the perspective of both parents on the risk assessment issue was plainly unreliable because of matters that have been adverted to above. In addition, Dr A becomes an independent frame of reference for assessing the weight to be given to the expert evidence in the Father's case, namely that of his psychologist, Dr S, and his psychiatrist, Dr E.
Dr A's first report is dated 29 July 2015. His opinion commences at paragraph 116. Whilst lengthy, the Court believes that it is important to reproduce this section of Dr A's report:
116. Opinion:
117. Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence:
118. The children were identified to have been subjected to psychological harm given their exposure to family violence. They had been exposed to parental conflict in the context of parents’ volatile relationship. The children had been exposed to the father’s abnormal mental state and suicidal behaviour which had been highly distressing. X gave a detailed and dramatic account of the stress of the father’s attempted hanging. Both children had been exposed to this traumatic incident. There was however no evidence that the children were currently being exposed to physical or psychological harm from being subjected to abuse, neglect or family violence. Although the mother raised concerns regarding the father’s potential for further unpredictable behaviour, this was not identified as a current risk. The future risk of harm will depend on his capacity to maintain a stable mental state. This will rely on his adherence to treatment, including abstinence from substances of abuse.
119. Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views:
120. Both children spoke positively about residing in the care of their mother. She was well supported by her partner and stepmother. The children spoke in a delighted fashion regarding their contact with their father and their wish to maintain and extend this contact. X was exuberant in expressing her love for her father and desire for additional contact, including overnight contact. Nonetheless, she was absolute in her view that this should continue in the presence of her paternal extended family. This was understood in the context of her anxiety, which had been triggered by her exposure to her father’s attempted hanging, parental conflict and parental separation. She recognised her father’s memory loss following this event. She felt safe when supervised by her supportive extended paternal family. Given her evident maturity, significant weight should be accorded to these views. Y also spoke in an enthusiastic fashion about her desire to extend her contact with her father. Although Y was happy with unsupervised overnight contact and extended contact during the school holidays, she quickly agreed with her older sister when her concerns were expressed. Y had limited understanding given her young age and limited memory of traumatic events. Thus, less weight should be accorded to her views. It would be inappropriate for the children to be separated during contact. It was evident that the children were expressing their own experience and views. There was no evidence that they had been coached.
121. The relationship between the children and each other and with each of their parents and any other relevant person:
122. The children were observed to have an excellent relationship with each other, their parents and extended families. Their account was consistent with the observed interactions with both parents and grandparents. They reported an excellent relationship with their mother’s boyfriend. Although he was unable to attend there was nothing of concern identified with regard to his involvement with the children. They described good relationships with their extended paternal family, particularly enjoying their contact with their cousins.
123. The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent:
124. The mother was reticent to facilitate and encourage a close and continual relationship between the children and the father. Although she recognised this importance of the relationship, she viewed him as self-preoccupied, impatient and prone to anger when frustrated. His mental illness, suicidal behaviour, substance abuse, lack of child-centred focus, intimidation and lack of respect for her and the maternal grandparents remained a concern for her. The family had been traumatized by their exposure to his suicidal behaviour. She questioned whether his lack of empathy and cruelty to animals when hunting was a sign of impaired parenting capacity. Nonetheless, she respected the importance of the children’s connection with him. The father respected the mother’s care of the children and acknowledged that they were thriving in her care. Nonetheless, he was resentful of her lack of support for his role with the children and lacked empathy for her experience.
125. The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living:
126. X had experienced Generalised Anxiety Disorder and Separation Anxiety due to the trauma of her father’s suicidal behaviour, parental conflict and separation. She had benefitted from psychological intervention but remained vulnerable. Her pseudo-maturity was a response to these stressful circumstances and need to care for her father. Y was less anxious but less robust in her personality. Both children would experience an amplification of anxiety in the context of an extended separation from their mother. They enjoyed the regular contact with their father and would be distressed if this ceased.
127. The capacity of each parent or any other person to provide for the needs of the children, including psychological, emotional and intellectual needs:
128. The mother had prioritised the children’s developmental needs, while continuing to work as a (occupation omitted). As a single parent she depended on the support of her stepmother and partner. The children’s psychological, emotional and intellectual needs had been appropriately addressed. The children were seen to be thriving in her care. Their psychological vulnerabilities had been identified and addressed. Although the children reported that she was at times angry, use time out or hit them, she was not identified to be abusive or negligent.
129. The father viewed himself as having the capacity and motivation to attend to the children’s developmental needs. He rejected criticism of his parenting. Historical concerns were acknowledged. He had exposed the children to trauma given his mental illness and suicide attempt. He had not been mindful of the children’s needs while abusing alcohol and benzodiazepines, which had exacerbated the Post-Traumatic Stress Disorder (PTSD), Depression and Anxiety. The mother and maternal grandparents asserted that he had failed attend to the children’s needs, given his self-preoccupied lifestyle. Although he was loving and enthusiastic in his interactions with the children, the mother questioned his impulse control and capacity to prioritise the children’s needs. Given the stabilisation in his mental state and abstinence from alcohol and benzodiazepines, it is likely that he will be more attentive to the children’s needs. Nonetheless, he still lacked a child centred approach. His proposal for unsupervised care of the children, returning them to a halfway point from Canberra at 6:00 pm on Sunday evenings, lacked consideration for their need to settle prior to school on Monday morning. His intransigence regarding the mother’s proposals interfered with his consideration of the children’s needs. This was evident in his refusal to provide a mobile phone to enable communication with the children. When confronted about this and other issues he became defensive and justified his position. There was no indication that he would respect the mother’s views regarding the children’s developmental needs, despite her high level of attunement.
130. The attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person):
131. The mother was seen to have a loving, caring and protective attitude to the children. It was evident that she had prioritised the responsibilities of parenthood. The father was motivated to adopt a more responsible attitude towards the children’s welfare. It was probable that he had failed to attend to do so while married given his mental illness and substance abuse, however this opinion relied upon the account of the mother and maternal grandparents.
132. The effect on the children of any family violence to which they have been exposed:
133. Both children had been traumatised by their exposure to their father’s attempted hanging and long standing parental conflict.
134. The mental state of both parents insofar as it relates to parenting issues and if so, the impact that the mental state has upon either parent’s capacity to co-parent the children:
135. The mother had experienced Post Traumatic Stress Disorder precipitated by her exposure to the father’s attempted hanging and trauma in the workplace. This had resolved in the context of psychological intervention (her self-report was confirmed by her treating psychologist and in Dr K’s detailed correspondence). She exhibited a normal mental during the assessment. She did not report persistent symptoms of PTSD, Depression or Anxiety, but remained hypervigilant for the children’s welfare during contact with the father. Her capacity to co-parent was impaired by her exposure to the father’s disordered behaviour in the context of his substance abuse and mental illness. This was regarded to be a normal response to such circumstances. No further impairment of her parenting capacity was identified.
136. The father’s mental state had stabilised given his abstinence from alcohol and benzodiazepines. Although abstinent from alcohol for the past two years, he discontinued benzodiazepine use earlier this year. This had resulted in an improvement in his capacity to attend to the children’s developmental needs. An inconsistent history was obtained with regard to his persistent symptoms of PTSD, Depression and Anxiety. In the context of his application for Total and Permanent Disability (TPD) it was likely that he “pumped up” his psychiatric symptomatology and did not seek alternate employment. His mental state examination revealed underlying emotional vulnerability. He cried and was distressed with regard to his circumstances. He acknowledged personality vulnerabilities dating back to his exposure to child sexual abuse. By his own report, he had been controlling and lacked empathy in his relationships. This raised questions with regard to his ability to prioritise his children’s developmental needs and coparent in a respectful manner. The mother gave numerous examples of his failure to adopt a flexible child-centred approach to parenting. The father reluctantly acknowledged that such assertions were correct. When challenged regarding this he became overtly defensive, with a tendency to deny responsibility for this, blaming others, including the mother, for his predicament. He remained preoccupied by the injustice of the rejection of his TPD claim and associated court process. With regard to the Family Court process he focussed on his competence and lack of impairment. This was supported by his parents and treating psychologist.
137. The mental health / special needs of the children:
138. Both children engaged well during the assessment. They were seen to have evident strengths. X was a highly intelligent girl. Her pseudo-maturity was a response to her exposure to the trauma of her father’s attempted hanging, parental conflict. X had experienced persistent Generalised Anxiety Disorder. This had been appropriately addressed with psychological intervention. X was able to clearly articulate her experience. She was psychologically minded. It was evident that she had benefitted from psychological intervention. I strongly support the current referral to the Cool Kids Group, a cognitive behavioural group therapy intervention, developed by the (omitted) Clinic. Despite her evident vulnerability, she has a good prognosis given her evolving coping strategies, high level of intelligence, robust personality and social support.
139. Y had been exposed to the stressors within the family at a young age. She did not have a narrative memory to describe her experience of trauma like her older sister. She was seen to be less robust with regard to her personality development. Thus, although she did not have prominent Anxiety symptoms, she remained vulnerable.
140. Your opinion as to whether either of the children has behavioural and / or emotional issues and if so, then your assessment of either parent’s current and potential ability to meet those needs:
141. Both children were observed to have behavioural and emotional issues. Their mother was seen to be competent with regard to her ability to meet the children’s needs in this regard. She was well supported in her care of the children by her partner and extended family.
142. Despite his evident love for the children, the father remained preoccupied with his own issues. This impeded his ability to prioritise the children’s needs. Given his lack of involvement in their day-to-day lives (which the mother asserted had pre-dated the parental separation) he had less capacity to attend to the children’s needs in an empathic fashion. That said, he stated that he was motivated to do so. At present this remains untested. He was also well supported by his extended family in Canberra.
143. If so, your assessment as to whether the children’s emotional and behavioural issues are likely to improve or worsen if they re-commence spending time with the Respondent:
144. There was no indication that the children’s emotional and behavioural issues are likely to improve or worsen if they recommence spending time with the father. This will depend on the provision of a safe consistent environment in which their developmental needs are prioritised. This should include being returned to the mother’s home by 6:00 pm on Sunday’s prior to commencing school the following day, rather than halfway to Canberra as proposed by the father.
145. Your opinion concerning the prognosis, treatment and any other recommendations, including any recommendations for therapy of either parent and / or the children, if applicable:
146. The mother had a stable mental state and good prognosis.
147. The father’s mental health had stabilised given his abstinence from alcohol and benzodiazepines. Although his prognosis was improved in this context he remained vulnerable to residual PTSD, Depression, Anxiety, substance abuse and impulse control problems. His psychiatric treatment remained stable with the same psychologist, psychiatrist and medication regime – Sertraline 200mg each morning, Seroquel 300mg each night. He had not required psychiatric admission this year but had required recurrent admissions to (omitted) of (omitted) Hospital in recent years due to his chronic PTSD, Depression, Anxiety, prescription substance misuse and personality vulnerabilities. His mental state and prognosis may have been further compromised by Cerebral Hypoxia, which was reportedly a consequence of the attempted hanging. Although he experienced persistent short-term memory loss, which affected his day-to-day functioning, his treating therapist did not identify this issue. This was evident during the assessment and reported by X. According to the medical records a psychometric assessment confirmed this however could not be supplied when requested. I support his ongoing therapy with his treating psychiatrist and psychologist. When contacted they both spoke positively regarding his current functioning. Nonetheless, he may require further admissions to (omitted) of (omitted) Hospital in response to additional stressors. His prognosis will primarily depend on his abstinence from substances of abuse. A satisfactory resolution of the Court action regarding TPD application will assist his mental state and frustration, enabling greater independence.
148. Your assessment of the Respondent’s history of drug and alcohol use and its impact, if any, upon the children and his capacity to parent the children:
149. The father’s history benzodiazepine and alcohol use disorder had impaired his general functioning and parenting capacity in the past. His abstinence from these substances improved his capacity to parent the children.
150. Your assessment as to whether the Respondent’s current drug and alcohol use, if any, impacts upon his current and potential ability to meet the needs of the children:
151. No current use was identified.
152. Your opinion as to whether the Respondent exhibits coercive and controlling behaviour, if any, and if so, then your assessment of how this behaviour impacts upon the children and the Applicant:
153. The mother asserted that the father exhibited coercive and controlling behaviour. Although initially denied by the father and the paternal grandparents, they reluctantly acknowledged this to be the case. The father was referred to his application for TPD, which disclosed interpersonal difficulties, with past and present partners and as a parent. The paternal grandfather viewed this as related to his role as (occupation omitted). His exposure to child sexual abuse and repeated trauma within the workplace had had a substantive impact on his personality functioning. Such behaviour will impede his ability to flexibly respond to the children’s needs, particularly in the context of behavioural problems, including sibling rivalry. The father had been inflexible and frustrated in his dealings with the mother. He struggled to acknowledge the impact of this. It is likely that he will struggle in providing effective management of the children should they be oppositional and disruptive, which would be anticipated as a normal part of their developmental trajectory
154. Your recommendations as to whether it is in the children’s best interests to spend any time with the Respondent and if so, then your recommendations as to:
155. The regime for the children to spend time with the Respondent:
156. I would support an extension of the children’s contact with their father to include overnight visits on alternate weekends. This will enable the children to spend additional time with their father and extended paternal family. Given X’s passion for playing soccer, I would propose that the father attend her soccer match on alternate weekends (in line with his wish to participate in this activity) and then drive the children to Canberra together with the paternal grandparents or paternal uncles. The children should be returned to the mother’s home by 6.00 pm on Sunday afternoon. On non-soccer days pick up could be from the mother’s home or school on Friday afternoon. Should this arrangement proceed well, I would support additional time during the school holidays.
157. The parameters, restrictions and conditions, if any, for the children to spend time with the Respondent:
158. The father’s contact with the children should be contingent on the maintenance of psychological and psychiatric intervention. A formal undertaking to maintain abstinence from alcohol and benzodiazepines is indicated, as use will destabilise his mental state and parenting capacity. Supervision by the paternal extended family should continue for a minimum of twelve months. I would recommend that there be a review of the family circumstances and his mental state prior to consideration of unsupervised contact.
159. Any other guidelines, boundaries and/or suggestions for the children to spend time with the Respondent to minimise any risk of psychological and or emotional harm to the children, if any:
160. The maintenance of supervision by the extended family will minimise any risk of psychological or emotional harm to the children.
161. Your assessment of the Applicant’s capacity to manage the children spending time with the Respondent, foster the relationship between the children and the Respondent:
162. While the mother was supportive of the children’s relationship with their father, her experience impeded her capacity to trust him and foster this relationship. That said, she had not undermined this relationship. While the father focused on her refusal to facilitate communication via her mobile telephone, she gave an adequate account of her actions. Her proposal that the father provide a mobile phone for the children to enable communication was supported by the report writer. The father’s rejection highlighted his lack of respect for alternative approaches to address the children’s needs.
163. Your assessment of either parent’s capacity to parent collaboratively with the other parent:
164. Both parents had difficulties adopting a collaborative approach to parenting. This was rooted in the longstanding parental conflict which had been exacerbated by the father’s unstable mental state and behaviour. This had improved given his abstinence from alcohol and benzodiazepines. Given the lack of trust, mutual respect and goodwill between the parties, communication and problem-solving will remain difficult. This may be exacerbated by the father’s short-term memory impairment. The grandparents on each side supported each parent’s position rather than containing such views.
Dr A's second report is dated 22 June 2016. By then, as well as being able to speak to the parties, and the children, and derive further information from there, he also had a report by Dr E dated 26 May 2016.
Dr A's opinion commences at paragraph 49, and again bears reproduction:
49. Opinion:
50. There had been a significant improvement and stabilisation in the family circumstances over the past twelve months. The girls were seen to be progressing well and were enjoying their regular contact with their father. They felt safe, secure and supported in his care. They were highly motivated to spend regular time with their father, including overnight contact visits. There was no indication that they felt anxious or pressured regarding such a transition.
51. X continued to speak of her previous exposure to overwhelming parental conflict. This had been a source of anxiety. It was evident that her experience of distress had settled over time. She had identified with her father’s stated experience which could be viewed as a burden for her. This was consistent with her mother’s concerns regarding the father’s interactions with the children. Both girls demonstrated the benefits they had experienced from the stable care provided by their mother, the regular positive experiences during contact visits with their father and their capacity to express their emotional experience in the context of the therapeutic intervention with their psychologist. This enabled them to feel more secure despite their challenging life experience. Their wishes were seen to be genuine. Significant weight should be accorded to their views. Neither girl was identified to have a current emotional or behavioural disorder. They were well organised and progressing well in their general development.
52. There remained a lack of trust and poor communication between the parents, given the history of conflict. The mother remained reticent to facilitate unsupervised contact, however had supported the continued relationship between the children and the father. Although she questioned his lack of empathy and ability to prioritise the girls’ needs, she acknowledged that contact visits had progressed well. She viewed his current position that supervisors could not always be available to be an example of his manipulation. She remained fearful for the girls’ safety should there be unsupervised contact.
53. Both parents were seen to have the capacity to attend to the children’s developmental needs. This was progressing well. The father’s mental state had stabilised, despite his residual symptoms of PTSD. His abstinence from alcohol and benzodiazepines remained the platform for his stable mental state. His account of his improved and stable mental health was consistent with the reports of Dr E and Mr S. He remained adherent to the current Management Plan and was motivated to continue in therapeutic intervention. He had attended all appointments as arranged.
54. Given the stabilisation of the children’s emotional and behavioural status, positive and stable experience with their father, wishes for increased and unsupervised contact and stabilisation of the father’s mental state, I would make the following recommendations:
1. The maintenance of joint parental responsibility.
2. The maintenance of primary residence with the mother.
3. Continuation of regular weekend contact with the father.
4. The removal of the requirement for supervision.
5. That the father’s contact with the children be contingent on his capacity to maintain abstinence from alcohol and benzodiazepines, maintain his psychological and psychiatric intervention and provide permission for his treating psychologist and psychiatrist to notify the children’s general practitioner/ psychologist should there be indication of destabilisation in his mental state and functioning which could potentially place the children at risk.
It is thus clear that by 22 June 2016, Dr A's opinion was that there was no need for the Father's time to be supervised.
Dr A was cross‑examined on Wednesday, 24 August 2016, the third day of the hearing. His evidence will be dealt with below, but in order to make sense of the cross‑examination, and the evidence he gives, it is important to set out an intervening event.
On 1 August 2016 the Father featured in a Four Corners episode entitled “(omitted)” on the ABC. Both the video, and the transcript, were in evidence. It portrays the Father as being presently severely disabled by post-traumatic stress disorder. The Father himself refers to his hyper-vigilance and anxiety. He describes the horrific event in the line of his work which precipitated his descent into mental health issues. His own personal injury lawyer described him as one of the “worst affected (occupation omitted) I’ve seen …”
The program records the Father's battle to receive the benefits to which he was entitled as a result of his workplace injury, and what he perceived to be the formidable obstacles placed in his way by his employer's insurer. The Father referred to himself as being, at times, “in a state of self‑destruction. I was drinking heavily. I was heavily medicated …” The paternal grandfather provided a corroborating version of the Father's struggles.
The obvious issue raised by the Four Corners episode was whether Dr A's assessment of the Father in his second report was soundly based.
Mr Jackson commenced the cross‑examination. It became clear that Dr A had based his opinion not just on an observation of the Father's presentation, but also a mental state examination he conducted, as well as reference to material provided by both Dr E and Dr S.
Dr A had also reviewed the Four Corners video and transcript. He was asked whether that changed the opinion that he had otherwise expressed at paragraph 53 of his second report. Dr A's fulsome answer is found on page 4 of the transcript of his evidence, from lines 6-37:
Dr A:There are several issues that come up from this additional material, so the first thing to say is that, as I tend to find in my report, in paragraph of the treating psychiatrist’s report, Dr E’s report, he does say that Mr Beckett’s current psychiatric disorders have stabilised, but that there are a range of issues that he continues to experience, which are the source of irritability and distress. Further, the documentary, which I watched with regard to Y’s experience, mental state, behaviour, really focused on his enduring symptoms of post-traumatic stress disorder and his ongoing vulnerability. In paragraph 4 of Dr E’s report dated 24 May 2016, he expresses the opinion that Mr Beckett had no capacity to undertake volunteer work, highlighting the concerns with regard to his capacity, and the documentary that was prepared by Four Corners highlighted Mr Beckett’s ongoing disabilities in the context of his residual symptoms of post-traumatic stress disorder. And that does raise concerns with regard to my views as expressed in my report most recently dated 22 June 2016.
Mr Jackson:In particular, Doctor, does that raise concerns about your opinion at paragraph 53, that you said that the father - you said both parents, but you meant the father as well as the mother - have the capacity to attend to the children’s developmental needs?
Dr A:Yes, it does.
Mr Jackson:Okay. In what way, sir?
Dr A:Both with reference to these issues, and also there are a number of references in the mother’s most recent affidavit which go to the question of the father’s capacity. The first observation that I would make is that the father presented very well when seen in the context of his review. He was attentive, loving, concerned about the children’s well-being, and the girls both enjoyed his attention to their care. The concern that is raised in the context of the additional information relates to the potential fluctuation in Mr Beckett’s mental state in the context of triggers for his post-traumatic stress disorder, in the context of his ongoing treatment with medication and the potential side effects associated with that medication, and the mother in her affidavit highlights the challenges ahead as the girls become less compliant, as they enter adolescence, as they challenge parental authority, which is of course a normal part of the adolescent developmental experience.
He then explained, in effect, that the Father's presentation on Four Corners was more consistent with his presentation to Dr A during the first report interviews and inconsistent with his presentation during the second report. Dr A explained that he had formed the view that there had been a stabilisation and an improvement in his mental state between July 2015 and June 2016, which was inconsistent, however, with the Father's presentation in the Four Corners program.
Dr A accepted the inevitably that at all relevant times the Father's presentation to him involved seeking to minimise his experience of emotional distress. He had already factored that in to both his evaluations of the Father. The impact of the Four Corners documentary was to accentuate Dr A's concerns about the risk of the Father's mental state fluctuating. The Four Corners program demonstrated that he remained vulnerable, and that his mental state will fluctuate depending on triggers, and on his circumstances from time to time.
Dr A accepted the possibility that the Father's presentation on Four Corners was in a particular context, and that he may not have been overly sincere in his presentation on that program – indeed, that is the Mother's hypothesis.
Dr A's concerns, in view of the Four Corners program, are articulated at transcript page 7, commencing at line 16, and concluding on page 8, line 20:
Dr A:It is, and the - essentially, what I was provided with by the father predominantly was how consistent and improved things were. Now, the concern with regard to the Four Corners documentary is difficult, because there is the possibility that Mr Beckett was magnifying his symptoms for the purposes of the documentary and the points that he was putting forward, as I previously stated. He did, however, present, within the last two months, in a very public setting his level of hypervigilance, his degree of depression, his degree of dysfunction, his degree of incapacity. And one of the difficulties for me in providing an opinion to say that he’s actually functioning well and he’s functioning well enough, is that in that setting he did present as being compromised.
Mr Jackson:You mentioned about triggers that could cause fluctuations, I assume, towards the adverse side of his condition. What sort of triggers do you think would arise that might ‑ ‑ ‑?
Dr A:Well, so there are a number of obvious triggers. So where he has had a history of repeated trauma, anything related to that sort of trauma will be likely to precipitate a hypervigilant response and a range of responses which may be associated with his post-traumatic stress disorder. So if he was placed in a high-risk traumatic situation, one would expect him to overreact. Secondly, if he was challenged, if things - if he was feeling frustrated, if he was feeling that things were beyond his control, there would again be the capacity to overreact to circumstances. The - and so one of the issues that is raised in the mother’s most recent affidavit is her concerns about the father - about Mr Beckett being challenged. So if Mr Beckett was challenged in a family context, there would be the capacity for him to have difficulty in containing his frustration and to express himself with anger and irritability.
Mr Jackson:Now, that - sorry, Doctor - sorry, Doctor. Keep going?
Dr A:Finally, and again, this is something that the mother raises concerns about with - you know, with regard to - in her affidavit material, is the issue with regard to the father’s medication. Very clearly, if there was a return to abuse of benzodiazepines and alcohol, as has been identified by both myself and the treating psychologist and psychiatrist, there would be profound exacerbation of such vulnerabilities with regard to his mental state. But there is also the question with regard to the impact of medication and particular timing with regard to the impact of the medication, and the - if, under the influence of the sedating medication, and the sedating - there are two medications that the father remains treated with. The first is ..... which is an antidepressant medication .....dose of 200 mg in the morning - that would have no significant impact upon his level of functioning. He is, however, taking a sedating antipsychotic medication, Seroquel, 300 mg at night, and during the day that is unlikely to have a significant impact upon his level of functioning. However, one of the factors that I had not identified in my report was that if the father was awoken in the middle of the night, you know, with a particular issue to address in an urgent fashion with regard to the children, under the influence of 300 mg of Seroquel that he had taken a couple of hours before, in the context of where he is already vulnerable, in the context of his longstanding chronic symptoms of post-traumatic stress disorder, that would be a potential situation where he may decompensate in the context of, first of all, there being an emergency trigger which, as I stated before, may result in a hypervigilant response from him. Secondly, being disorientated in the middle of the night and, finally, in the context of his use of Seroquel. And so that would be clearly a very specific event, an unusual event, but the type of event that could potentially trigger a response.
It is important to observe the triggers that Dr A identifies, and the risk of overreaction.
Dr A was referred to Dr S's opinion that the Father's risk of relapse was low. Ultimately, he agreed with that, provided the Father remained stable, and there were no further stresses such as those which Dr A had identified. He emphasised that the Father had made significant gains over time, he had remained abstinent from alcohol and substance abuse, and he had remained compliant with his medication. The resolution of issues relating to his TPD claim and the family law issues, are all positive indicators.
The focus of Mr Jackson's cross‑examination then turned to the impact on the Mother of the Father's mental health. Dr A explained that her anxiety about the children's safety was understandable, particularly her perception, with which Dr A agreed, that the Father's approach in relation to spending time with the children was inflexible, lacked empathy, and seemed unable to prioritise the children's needs over his own. Nonetheless, Dr A was of the view that the Mother's anxiety was not such that she would not be able to cope if an order for unsupervised time was made.
Mr Jackson then explained the Independent Children's Lawyer's proposal and asked Dr A to respond. This is found on transcript page 11, lines 7-27:
Mr Jackson:Would this scenario be something that you might consider, that the father’s time with the children, although not being under a very strict supervision sense, be that he remain living with his parents for a period of about two or three years, and of course the older child will be 12 in three years’ time, and that they be around, for example, for holidays and other activities, so that it’s really what we could describe as being a very informal supervision arrangement. Would that be something that you would consider as a recommendation?
Dr A:Yes. Yes, I think that would be suitable.
Mr Jackson:Right?
Dr A:The only point that I would make is that - I think that would be suitable. It certainly was my impression - I’m just trying to locate this. There could be an alternative, of course, to that. In paragraph 34 of my second report the father was talking about his new stable relationship with Megan, and there was obviously the possibility that this relationship may develop over time. He emphasised, you know, his, you know, desire to move on with his life and so, in paragraph 38, he was talking about his motivation to live independently in his own place in Canberra. And so I think that the proposal that you’ve just put is a useful one, and it could be extended to if the father alternatively did form a stable new relationship, that his partner could play that same role, because I think it would be problematic for the father, if he was in the situation where he was wanting to establish a de facto relationship with his new partner, that he was not allowed to do so for three years on the basis of the circumstances identified.
Dr A thus endorsed a proposal that did not involve strict supervision as such, but would necessarily involve the presence of other adult members of the paternal family, whilst the Father spends time with the children. The willingness of the members of the paternal family to act in this role was evident.
Dr A was firmly of the view that because of the Father's rigidity and inflexibility in relation to parenting matters, co-parenting between the parents was not likely, and an order for equal shared parental responsibility would be quite impractical.
Dr A was then referred to an issue about travel for the purposes of contact. The Independent Children's Lawyer's proposal, and Dr A's response, is found at transcript page 17, line 19, to page 18, line 9:
Mr Jackson:You may have been aware of that. I think paragraph 45 of your second report you make some reference to that. The father's position and the evidence he gave quite recent, this afternoon, was that he would - is not intending to move to an area close to where the girls live. He wants to remain in the Canberra area for appears to be quite cogent reasons. But he is extremely adamant that he's not prepared or he seems to be adamant that he's not prepared to do any travel to take the girls to their weekend sports during his time with them. You may already be aware of this?
Dr A:Yes.
Mr Jackson:Can I suggest this as a - perhaps as a potential solution, and if you could indicate your opinion on this. If the father's time - the frequency of the father's time during periods of weekend sport, during a season, for example, was once every three weeks, rather than once every two weekends, would that be something that you consider as a viable solution to this problem?
Dr A:I think that it would be very useful to come up with a solution for the problem. This will become increasingly important over time as the girls want to participate more in such activities. They have the strong support of their mother in this regard. Certainly, the father was viewing it from a very self-orientated perspective, when this issue was raised. He just saw it as essentially, you know, kind of, much more important for the girls to have contact with him and so basically saw it as an either or situation. If it's possible to take a more nuanced approach, so that the girls' engagement in sport can be supported, that that can be negotiated in manner so that they're still able to participate in the sporting arrangements. If their teams were able to have them participate if they missed one in three weekends, that would be a potential solution. And certainly if that was agreed upon by the parents, I would support that.
Mr Jackson:And also it reduces the father's concerns about travelling himself, which he raised in his evidence. In other words, he may not have to travel as much as he would have otherwise, if it was every alternate weekend?
Dr A:I think - I think the problem will be that if that was put to the father - and I certainly haven’t put it to him - that my concern would be that he would be frustrated by that, because it would result in a reduction in the frequency of his contact with the girls. And so he would be frustrated with that. Secondly, I am not sure that even if it was once every three weeks that he would be agreeable to travel with regard to sport. I think one of the problems that the father has with regard to his parenting capacity and his general functioning is his inflexibility with regard to such matters. And if, however, you know, that's what he has to do, he will have the capacity to buckle down and do it. But I would assume, based on his communication with me regarding such issues when it was put, that he would be resistant.
In effect, Dr A endorsed what was to become the Independent Children's Lawyer's proposed parenting Orders to the Court.
That the husband collect the children at the commencement of each of his time spent periods with the children and the husband shall return the children to the mother at the conclusion of such time.
That any time that the husband spends with the children is to be supervised by his nominated supervisors being:
7.1.Ms S
7.2.Mr B
7.3.Mr N
7.4.Mr M
Respondent Father’s proposed Minute of Order regarding parenting matters
That each parent have equal shared parental responsibility of the children X born (omitted) 2007 and Y born (omitted) 2009 (the children).
That the children live with the Applicant.
That the children spend time with the Respondent as follows:-
a.From 5.00pm Friday until 5.00pm Sunday commencing from the date of these Orders and continuing each alternate week thereafter.
b.For one half of all school holiday periods as agreed between the parties but failing agreement for the first half in each even numbered year and the second half in each odd numbered year.
c.On the weekend incorporating Father’s Day, from 5.00pm Friday until 5.00pm Sunday.
d.At such other times as the parties may agree upon from time to time.
That the children’s time with the Respondent in Order 3 be suspended on the following occasions when they shall remain in the Applicant’s care:
a.On the weekend incorporating Mother’s Day, from 5.00pm Friday until 5.00pm Sunday.
That all changeovers occur at (omitted) Service Station located on the (omitted) unless otherwise agreed.
That the Applicant shall do all things reasonably required to authorise any treating medical practitioner to communicate directly with the Respondent in relation to matters concerning the children’s health.
That each party notify the other of any medical appointments made for the children prior to such appointment except however in the event of an emergency in which event the parent with the care of the children at the time of such emergency shall notify the other parent as soon as practicable.
That the Applicant shall do all things reasonably necessary to authorise the children’s school to communicate directly with the Respondent in relation to matters concerning the children’s schooling and education.
That neither party shall denigrate or permit any third person to denigrate the other parent or members of that parent’s family or household within in the presence or hearing of the children.
10.That neither parent shall publish any comment or make any remarks about the other parent, either directly or indirectly, on any social media application or other public forum which is intended to offend, disparage or denigrate that parent and in the event of any comment or remark being made, whether intentionally or otherwise, that parent such immediately remove and/or retract such comment or remark immediately upon being requested to do by the other parent.
11.That the Respondent shall be permitted to communicate with the children by telephone each Tuesday and Thursday between 6:00pm to 7:00pm and for the purpose of such communication, the Respondent shall call the children on their mobile phone and if this phone is not capable of receiving calls then the Applicant shall notify the Respondent of an alternate phone to contact the children and the Applicant shall otherwise facilitate telephone communication between the children and Respondent by doing all things necessary including ensuring the children are contactable and free to speak with the Respondent without interruption or distraction.
12.That both the Applicant and Respondent shall do all acts and sign all such documents necessary to ensure that the children have a valid Australian Passport at all times and equally share the costs associated with the issuing and renewing of the children’s passports.
13.That each parent is permitted to travel outside the Commonwealth of Australia with the children provided always:
a.no less than 60 days prior to the intended date of departure the travelling parent must provide the other parent with written details of the proposed travel including:
i.Dates and method of travel (including flight and ship number, departure and arrival times);
ii.A detailed and complete itinerary showing all destinations of travel; and
iii.Address and telephone details (land line) of all accommodation where the children will be residing.
b.such travel occurs within a country that is a signatory to the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 otherwise not until the express written consent of the non-travelling parent is obtained.
c.The travel occurs during periods when the children would ordinarily be spending time with that parent pursuant to these orders unless otherwise agreed.
14.Provided there has been strict compliance with Order 13 by the parent seeking to travel outside the Commonwealth of Australia with the children, the non-travelling parent shall provide all necessary consents and do all things necessary as and when required to facilitate such travel occurring, including providing the passports for either of the children which he/she has possession of not less than 14 days prior to the departure date.
15.That neither party shall, without the express written consent of the other party, enrol the children or either one of them in any sporting, recreational or extra-curricular activity which occurs during time that the other party is to spend with the children.
Independent Children’s Lawyer’s proposed Minute of Order regarding parenting matters
Previous Orders
All previous orders in these proceedings are hereby discharged
Parental Responsibility:
That the Mother have sole parental responsibility for the children, X born on (omitted) 2007, and Y born on (omitted) 2009.
Live With Orders:
That the children live with the Mother.
Spend Time With Orders in relation to the Mother:
Conditional upon the terms set out in paragraphs 5 and 6 below, the children spend time with the Father as follows:-
4.1 During school terms 1 and 4:
4.1.1each alternate Friday afternoon commencing at 4.00pm until the following Sunday afternoon at 5.00pm;
4.2 During school terms 2 and 3 for the purpose of participating in weekend sport:
4.2.1each third Friday afternoon commencing at 4.00pm until the following Sunday afternoon at 5.00pm, (being the second and fifth and eighth weekend of such school terms);
4.2.1.1 to be suspended on any weekend coinciding with Mother’s Day.
4.2.1.2 to be suspended if such a weekend falls on Y’s birthday, from 9am until 5pm on that given day.
4.2.2from Friday 4.00pm on the weekend coinciding with Father’s Day until Sunday 5.00pm if not consistent with weekend as set out in sub-para 4.2.1.
4.2.3for the birthday celebrations of: Y if it does not coincide with the period set out in sub-para 4.2.1:
4.2.3.1 from 9am until 5pm if it falls on a weekend;
4.2.3.2 from after school until 7.30pm if it falls on a weekday.4.2.4.The parties will aim as best as possible to ensure that the Father’s weekend time will coincide with the Queen’s Birthday weekend and Father’s Day, and will not coincide with Mother’s Day.
4.3 During school holidays:
4.3.1For the first half of each school holidays in years ending in an even numbered year to from the last Friday of the school term at 4.00pm until 4.00pm on the following Friday.
4.3.2For the second half of each school holidays in years ending in an odd numbered year to commence at 4.00pm on Friday and conclude on the following Friday at 4.00pm.
4.3.3For the first half of each school holidays in years ending in an even numbered year to from the last Friday of the school term at 4.00pm until 4.00pm on 2 January.
4.3.4For the second half of each school holidays in years ending in an odd numbered year to commence at 4.00pm on 2 January and conclude on the Friday at 4.00pm before school is to commence.
4.3.5Time in 4.3.1, 4.3.2, 4.3.3 and 4.3.3 be suspended for the period from Christmas Eve at 12 noon until Boxing Day at 8.30pm.
4.3.6From Christmas Eve at 12 noon until Christmas Day at 5.30 pm in years ending in an even number.
4.3.7From Christmas Day at 5.30pm until Boxing Day at 8.30pm in years ending in an odd number.
Conditions of the Father’s spend time:
The Father’s time during school term weekends with the children as set out in paragraphs 4.1 and 4.2 above is conditional upon:
5.1The Father living for two years from the date of the Orders in the residence of his parents, (being both or if relevant either one), Mr B and Ms S, if his parents both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one of his parents remain in the ACT during the course of that spend time period with the children.
5.1.2 In the event that both of the Father’s parents are not available to remain in the ACT during his spend time period, then where relevant any overnight spend time period shall take place at either the Father’s brother’s Mr M or Mr N‘s residence, if his brothers both (or if relevant either one) live in the Australian Capital Territory (ACT), and that the Father does all things necessary to ensure that at least one brother remain in the ACT during the course of that spend time period.
5.2That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
5.3That for a further three years from the date of these orders, the Father shall continue regular and appropriate treatment and/or counselling for his mental health, unless there is a written advice from a treating psychiatrist that such treatment and/or counselling is no longer required with such a condition does not prohibit the Father from continuing such treatment and/or counselling beyond the three year period.
5.4That within seven days from the date of these orders the Father is to provide his treating doctors (including psychiatrists) and psychologists with an authority to ensure that the Mother has access to any records of attendances and medication as prescribed.
5.5 That the Father is not to take the children on any animal hunting events.
The Father’s time during school holidays with the children as set out in paragraphs 4.3 is conditional upon:
6.1If the time takes place in the ACT, the same conditions as such out in subparagraph 5.1 above.
6.2If the time takes place outside the ACT, for the first two years from the date of the Orders any one or more or the Father’s parents or brothers shall accompany the Father and the children on any such interstate (or ‘interterritory’) trips including holidays.
6.3That the Father without admission is to not consume alcohol during the period of spend time and 12 hours before the commencement of the spend time period.
6.4 That the Father is not to take the children on any animal hunting events
Changeover venues:
That for the purpose of changeover the Father will collect and return the children from the Mother’s home except for the purposes of Christmas changeover at 4.3.6 and 4.3.7 whereby the Mother and Father will facilitate changeover at (omitted) Service Station.
Non denigration orders:
The parents are restrained from denigrating the other in the presence of the children.
Social Media prohibition:
Both parents are prohibited from publishing any information on social media that refers in any way to the other parent.
Notifications:
That the Mother shall ensure that the Father is kept informed by way of email as soon as it is reasonably practical of:
10.1Any serious medical problems or illnesses suffered by the children;
10.2Any specialist medical appointments;
10.3Any significant social, school or religious functions which the children are to attend to which the Father shall be entitled to attend;
10.5The details of any sporting body(ies) that the children are involved in;
10.6Any other important matter relevant to the welfare of the children.
The Mother shall provide authorities to the children’s school and medical providers to enable the Father to receive any relevant information otherwise provided to parents.
Information exchange and authorisations:
The parents shall keep the other informed of their respective residential addresses, contact telephone numbers and email addresses and is to inform the other of any change to same within 7 days of such change occurring.
Education & Extra Curricular Activities:
The Father is entitled to attend all events involving the children including, but not limited to:
13.1Sporting fixtures;
13.2Extracurricular activities that allow for parent attendance or participation;
13.3School functions and events that allow for parental attendance or participation.
Schedule Two
Applicant Mother’s proposed Minute of Order regarding property matters
That the Husband shall do all acts and sign all documents necessary to transfer to the Wife his entire right, Title and interest in the parties' former matrimonial home known as and situated at Property H being the whole of the land contained in Certificate of Title folio identifier "(omitted)".
That simultaneously with the husband's compliance with Order 8 above, the wife shall do all acts and sign all documents necessary to refinance into her sole name the mortgage loan secured on the property in the parties' joint names with (omitted) Bank and thereafter the Wife shall indemnify the Husband and forever keep him indemnified against any liability in respect of the home including but not limited to the payment of water and council rates, mortgage repayments and insurance payments.
10. That the Husband shall be the sole owner of his Mitsubishi (omitted) ute.
11. The Wife shall be the sole owner of her motor vehicle Mazda (omitted) registration number (omitted).
12. That the Husband shall be the sole owner of his (omitted) boat registration number (omitted).
13. That monies received by the Husband by way of his Total Permanent Disability claim be divided as to 35% to the Wife and the balance to the Husband.
14. That the husband and wife have the sole right title and interest in:
14.1.Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively.
14.2.Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
15. That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
16. That pursuant to Section 123 of the Child Support (Assessment) Act 1989 the Husband pay to the Wife the sum of $7,343.62 in payment of arrears of Child Support.
17. That the Husband pay to the Wife pursuant to Section 123 of the Child Support (Assessment) Act 1989 the sum of $105,768.00 by way of lump sum Child Support.
18. That pursuant to Section 125 of the Child Support (Assessment) Act 1989 the payment of $105,768.00 be credited 100% against any liability of the Husband for an administrative assessment of Child Support in any given year for the period from the date of this Order until the same day 2022.
19. That the Husband pay the Wife's costs of and incidental to these proceedings.
Respondent Father’s proposed Minute of Order regarding property matters
That the Applicant and Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at Property H in the State of New South Wales (the Property H property) and for that purpose the following shall apply:
(a)The property shall be listed for sale by private treaty with such real estate agent as agreed between the parties and in the absence of agreement within 28 days from the date of these Orders, as nominated by the President or his nominee of the Real Estate Institute of Australia.
(b)The list price of the property shall be as determined by the parties and should the parties not be able to reach agreement then as specified by the listing agent.
(c)The parties shall accept all offers at or above 90% of the listing price.
(d)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(e)That upon agreement being reached for sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor.
(f)The contract of sale shall provide for completion on a date as determined by the parties and in the absence of agreement then 42 days from the date of exchange.
(g)The proceeds of sale of the property shall be paid in the following manner and priority:
(i) To discharge the mortgage in favour of (omitted) Bank secured over the property.
(ii) Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale.
(iii) Payment of the legal costs and outlays relating to the sale.
(iv) The remaining balance to be paid to each of the Applicant and Respondent in equal shares.
In the event that the Property H property is not sold by private treaty pursuant to Order 16 on or before three months from the date of this Order then the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(a)The property shall be listed with the agent appointed under Order 16 (hereinafter called “the Auctioneer”) for sale by auction within a further 3 months.
(b)The parties shall execute all documents requested by the auctioneer for sale of the property by auction.
(c)The reserve price of the property shall be such amount as is agreed upon by the parties and in the absence of agreement as specified by the listing agent.
(d)The parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties.
(e)The parties shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer.
(f)The parties agree to co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction.
(g)That the parties attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.
(h)The parties shall accept all offers at or above 90% of the reserve price.
(i)That the parties attend at the auction and negotiate with the highest bidder or any other interested party in the event that the reserve price is not reached, for the purpose of reaching agreement under Order16(g).
(j)That upon agreement being reached for sale of the property, Orders 16(e), 15(f) and 15(g) shall apply.
In the event that the Property H property is not sold at the auction or pursuant to Order 16(i) or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the property to be held within 4 months after the date of the first auction and the provisions of Order 16 shall apply and the property shall continue to listed for auction in accordance with the provisions of this Order and Order 16 above until sold.
That pending the sale of the Property H property in the manner detailed above, the Applicant shall be liable for and indemnify the Respondent in relation to the repayments on the (omitted) Bank home loan held in the joint names of the parties together with payment of council and water rates, premiums for the current household insurance policy and all utilities expenses levied about the Property H property.
That the Applicant shall pay the Respondent the following amounts:
(a)$9,075 representing 50 percent of the fees charged by Dr A in preparing 2 reports in these proceedings;
(b)$3,300 representing 50 percent of the fees charged by Mr Ian Coleman SC for conducting a mediation;
(c)$4,000 representing 50 percent the monies advanced by Ms S towards a joint credit card liability;
(d)$440 representing 50 percent of the fees charged by (omitted) for conducting a valuation on the (omitted) property; and
(e)$750 representing 50 percent of the fees charged by Boat Check for conducting a valuation on the (omitted) boat.
with such payment totalling $17,565 to be deducted from the Applicant’s share of the proceeds of sale relating to the Property H property referred to above.
That all funds held on trust or in controlled monies by the Respondent’s solicitor in respect of monies paid in relation to the Respondent’s TPD claim and/or superannuation entitlements shall forthwith be released to the Respondent and retained by him for his sole benefit to the exclusion of the Applicant.
The within 14 days from the date of these Orders the Respondent is to:
(a)Provide to the Applicant with a list of dates, being no less than three separate date, to collect his property, as described in the Property List which is annexed hereto and marked with the letter “A”, presently held at the Applicant’s residence.
(b)Within 48 hours of receipt of the Respondent’s available dates, the Applicant shall confirm a date that is suitable to her for the Respondent to collect his items.
(c)The Respondent shall be permitted to attend upon the Applicant’s residence on a date that has been agreed upon by the parties to collect the items listed in Annexure A and should not be permitted to enter any area of the property, other than the immediate area where the said items are stored.
That subject to the preceding, each of the Applicant and Respondent be declared to have the sole right title and interest in:
(a)Any chattels, goods, motor vehicles, furnishings and other property which are at the date hereof in their possession respectively.
(b)Any monies, shares, debentures, superannuation and leave entitlements, which stand in their sole name respectively at the date hereof.
That subject to the preceding, each party shall remain liable for and shall indemnify the other party in respect of all debts and liabilities held in that parties’ name.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A of the Family Law Act 1975 the Registrar of the Federal Circuit Court of Australia at Sydney shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and thereafter do all things and acts as are necessary to give validity and operation to same.
That the Applicant pay the Respondent’s costs of and incidental to these proceedings.
4