BICKFORD & BICKFORD
[2020] FCCA 2818
•15 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BICKFORD & BICKFORD | [2020] FCCA 2818 |
| Catchwords: FAMILY LAW – Parenting and property proceedings – allegations by the Mother of family violence during the relationship and post-separation – allegations by the Father that the Mother is attempting to minimise his role in the children’s lives – Mother sought orders to change the children’s surname to her current partner’s surname – ordered that the children spend substantial and significant time with the Father – issues of value of property pool – Father received inheritance – division of assets between the parties following separation – orders made for property division. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60CA, 60CC, 61C, 61DA, 65DAA, 75, 79, Part VIIIA Evidence Act 1995 (Cth), s.140 |
| Cases cited: Bevan v Bevan (2013) 279 FLR 1; [2013] FamCAFC 116 Dickons & Dickons [2012] FamCAFC 154 Eufrosin & Eufrosin [2014] FamCAFC 191 |
| Applicant: | MR BICKFORD |
| Respondent: | MS BICKFORD |
| File Number: | MLC 5007 of 2019 |
| Judgment of: | Judge Blake |
| Hearing dates: | 3 and 4 June 2020 |
| Date of Last Submission: | 11 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 15 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Combes |
| Solicitors for the Applicant: | Alpass and Associates |
| Solicitor Advocate for the Respondent: | Mr Testart |
| Solicitors for the Respondent: | Testart Family Lawyers |
| Counsel for the Independent Children’s Lawyer | Mr Gardiner |
| Solicitors for the Independent Children’s Lawyer | Westminster Lawyers Pty Ltd |
ORDERS
All previous orders be discharged.
The parties have equal shared parental responsibility for the children X born in 2012 and Y born in 2014 (‘children’).
The children live with the Mother.
The Father spend time and communicate with the children as follows:
(a)Commencing upon the making of these Orders, for a period of one month, each Tuesday from after school, or 3.30pm if it’s a non-school day, until 7:30pm and each alternate Sunday from 10:00am until 5:00pm;
(b)Commencing no earlier than one month after the making of these Orders, each Tuesday from after school, or 3.30pm if it’s a non-school day, until 7:30pm and each alternate Saturday from 10:00am until Sunday at 5:00pm;
(c)Commencing no earlier than three months after the commencement of time pursuant to order 4(b) herein, during the school term, each Tuesday from after school, or 3.30pm if it’s a non-school day, until 7:30pm and each alternate Friday from after school, or 3.30pm if it’s a non-school day, until Sunday at 5:00pm;
(d)Commencing three months after the commencement of time pursuant to order 4(c) herein, during the school term, as follows:
(i)in week one, on Tuesday from after school, or 3:30pm if it’s a non-school day, to the commencement of school on Wednesday, or 9am if it’s a non-school day; and
(ii)in week two, from after school on Friday, or 3.30pm if it’s a non-school day, until the commencement of school on Monday, or 9am if it’s a non-school day;
(e)Commencing in Term 2, 2021, for one half of each school term holiday and, commencing in the 2021/2022 summer holidays, for one half of the summer holiday, at times to be agreed and, in default of agreement, the first half;
(f)From 2:00pm on Christmas Eve 2020 until 2:00pm Christmas Day 2020 and each alternate year thereafter;
(g)From 2:00pm on Christmas Day 2021 until 2:00pm on Boxing Day 2021 and each alternate year thereafter;
(h)From the end of school, or 3:30pm if it’s a non-school day, on the Thursday before Easter 2021 until 5:00pm on Easter Saturday and in each alternate year thereafter;
(i)From 5:00pm on Easter Saturday 2022 until 5:00pm on Easter Monday and in each alternate year thereafter;
(j)On the Father’s Day weekend from 5:00pm on the Saturday preceding Father’s Day until the commencement of school on Monday, or 9am if it’s a non-school day;
(k)On each of the children’s birthdays if they are not in his care:
(i)if it’s a school day, from the conclusion of school until 6:00pm; and
(ii)if it’s a non-school day, from 10:00am until 2:00pm;
(l)On the Father's birthday:
(i)if it’s a school day, from the conclusion of school that day until the commencement of school the next day, or 9am if it’s non-school day; and
(ii)if it’s a non-school day, from 10:00am until 5:00pm;
(m)By telephone or electronic video communication at all reasonable times, but no less than once per week.
(n)As otherwise agreed between the parents in writing from time to time.
The Father's time with the children is suspended and the children spend time with the Mother on the following events:
(a)on the Mother's Day weekend from 5:00pm on the Saturday preceding Mother’s Day until the commencement of school on Monday, or 9am if it’s a non-school day;
(b)on the children’s birthdays, if the children are in the Father's care pursuant to these orders (save for order 4(k)):
(i)if it’s a school day, from the conclusion of school until 6:00pm; and
(ii)if it’s a non-school day, from 10:00am until 2:00pm;
(c)on the Mother's birthday,
(i)if it’s a school day, from the conclusion of school that day until the commencement of school the next day or 9am if it’s a non-school day; and
(ii)if it’s a non-school day, from 10:00am until 5:00pm;
(d)From 2:00pm on Christmas Day 2020 until 2:00pm on Boxing Day 2020 and each alternate year thereafter;
(e)From 2:00pm on Christmas Eve 2021 until 2:00pm Christmas Day 2021 and each alternate year thereafter;
(f)From 5:00pm on Easter Saturday 2021 until 5:00pm on Easter Monday and in each alternate year thereafter;
(g)From the end of school, or 3:30pm if it’s a non-school day, on the Thursday before Easter 2022 until 5:00pm on Easter Saturday and in each alternate year thereafter;
For the purposes of the spend time arrangements outlined in paragraph 4 and 5 of these Orders, all changeovers that do not take place at the children’s school, take place at McDonalds Suburb C, with Mr B to be in attendance.
The children continue to use the surname “Bickford”.
Each of the Mother and the Father be and are hereby restrained by injunction, by themselves, their servants or agents from criticising, rebuking, abusing or denigrating the other or any member of the other’s household and/or family in the presence or hearing of the children or either of them.
The parties engage professional counselling support in relation to the psychological and emotional impact of their relationship breakdown and follow all directions of their treating professional.
The parties do all thing necessary to enrol the children and ensure they attend in the “My Parents ‘n’ Me” program through Relationships Australia.
The parents communicate using MyMob, Talking Parents or such other family communication medium.
Within 90 days of the making of these Orders (‘the date’):
(a)The Respondent pay the Applicant, care of Alpass & Associates, the sum of $28,246.28 (‘the payment’); and
(b)Contemporaneously with the payment, the Applicant lodge a withdrawal of any caveats at the Applicant’s sole expense.
Pending the payment being made:
(a)The Respondent have the sole right to occupy D Street, Suburb E (Certificate of Title Volume ..., Folio ...) (‘Property’) and that during such right of occupation, the Respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Property as they fall due, and keep the Applicant indemnified as to all outgoings of the Property;
(b)The parties hold their respective interests in the Property upon trust pursuant to these Orders; and
(c)Neither party encumber the real property without the consent in writing of the other party, unless the Respondent seeks to do so in order to comply with order 12(a) herein.
In the event the Respondent defaults on the payment referred to in order 12(a) above, the following provisions take effect:
(a)The Respondent forthwith do all things necessary to place the Property on the market for sale on such terms as may be agreed with the Applicant (‘sale’) and failing agreement, on such terms as may be set by the President by the Real Estate Institute of Victoria or his nominee;
(b)The Respondent shall instruct and authorise the selling agent to communicate and consult with the Applicant in relation to the terms and condition of the sale.
(c)The Respondent shall appoint such Solicitor as is agreed with the Applicant to conduct the conveyancing in relation to the sale and, in default of agreement, the President of the Law Institute of Victoria and/or his nominee shall appoint a Solicitor to conduct the conveyancing in relation to the proposed sale.
Pending the completion of the sale:
(a)The Respondent have the sole right to occupy the Property and that during such right of occupation, the Respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due, and keep the Applicant indemnified as to all outgoings of the Property;
(b)the parties hold their respective interests in the Property upon trust pursuant to these Orders;
(c)Neither party encumber the Property without the consent in writing of the other party,
Upon settlement of the sale of the Property, the proceeds of sale shall be applied as follows:
(a)Firstly, to pay all costs commissions and expenses of the sale;
(b)Secondly, to discharge the Commonwealth Bank mortgage and any other encumbrance affecting the Property, including any caveats;
(c)Thirdly, the sum of $28,246.28, plus interest on the sum of $28,246.28 or such part thereof which remained due to be paid to the Applicant, care of Alpass & Associates, Solicitors, at the rate prescribed by rule 17.3 of the Family Law Rules 2004.
(d)Fourthly, the balance to the Respondent.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any other subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the Property being deemed to be in the possession of the Respondent);
(b)Monies standing to the credit of the parties in any bank account in their sole name are to remain the property of that party and any monies in any joint bank account are to be divided equally between the parties;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the owner named therein;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
Subject to any appeal, the Independent Children’s Lawyer be discharged.
All extant Applications be dismissed and the matter be removed from the pending cases list.
Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
NOTATION:
A.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
B.Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these Orders shall as practicable finally determine the financial relationship between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Bickford & Bickford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5007 of 2019
| MR BICKFORD |
Applicant
And
| MS BICKFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
The Court has before it competing applications in relation to parenting and property matters. The proceedings were commenced by the Applicant Husband.
Having heard the competing contentions, I set out below a summary of the outcome:
a)The parties are to have equal shared parental responsibility of the children.
b)The children are to remain living primarily with the Respondent Wife.
c)The Applicant Husband will ultimately spend time with the children each alternate weekend for three nights, and one overnight period in the intervening week. There will be a build-up of time before implementing this arrangement.
d)The children’s surnames are to remain ‘Bickford’ and are not to be changed to ‘B’.
e)The property of the parties is to be divided on 53/47 basis in favour of the Respondent Wife. This will result in the Respondent paying the Applicant the sum of $28,246.28.
f)The parties will retain all other property in their possession, including superannuation.
Facts
The below facts are largely uncontested and any contested fact is noted. The chronology and background below were provided by the parties as a purported joint chronology and statement of agreed facts. I have discussed below the input of the parties’ legal representatives in preparing this material.
The Applicant was born in 1986 and is currently aged 34. The Respondent was born in 1990 and is currently aged 30.
The parties entered into a domestic relationship in 2011.
The parties purchased a property in F Street in 2011.
The parties were married in 2012.
There are two children of the marriage. They are X born in 2012 (‘X’), aged seven years at the time of the hearing, and Y born in 2014 (‘Y’), aged five years at the time of hearing.
Early in 2013, the Applicant moved to Queensland to pursue his interest in sports, and for work. There is a dispute between the parties as to whether the parties separated during this time.
In July 2013, the Applicant returned from Queensland. The parties reconciled and recommenced living together.
In late 2015, the parties purchased the property at D Street, Suburb E (‘Property’).
Separation occurred in 2018. The date of separation is contested. The Applicant says it occurred in August 2018, the Respondent contends it occurred in January 2018.
On 31 August 2018, the parties signed a financial separation agreement (‘Agreement’) prepared by the Respondent. The Agreement is not a ‘financial agreement’ for the purposes of Part VIIIA of Family Law Act 1975 (‘Act’). Neither party sought legal advice regarding the preparation of the Agreement.
At around the time noted above, the parties retained the following:
a)$25,000 was retained by the Respondent; and
b)approximately $81,000 was retained by the Applicant.
Subsequently, the parties signed all documents necessary to facilitate the transfer of title of the Property to the Respondent. The Respondent also became solely liable for the mortgage over the Property. Since separation, the Respondent has solely made all mortgage repayments on the Property.
The children have lived with the Respondent in the Property since separation. The Respondent’s new partner, Mr B, lives with the children in the home.
The Applicant spent time with the children by agreement with the Respondent between separation and April 2019.
The Respondent travelled to Country G between early 2019 and early 2019. During this trip, the children were in the care of the Applicant.
On 8 April 2019, the Respondent sent an email to the Applicant’s solicitor. In that email, the Respondent proposed that the children spend time with the Applicant, including on weekends.
On her return from her trip to Country G, the Respondent asserted that the children made disclosures to her about their father, and she formed the view that the children were at risk in the care of the Applicant. These allegations are disputed by the Applicant. The Respondent subsequently stopped the children from spending time with the Applicant.
On 14 April 2019, the parties divorced.
On 7 May 2019, the Respondent applied for an intervention order against the Applicant. The Applicant disputes the allegations giving rise to the intervention order application. As at the date of the hearing, a final hearing in relation to the intervention order proceedings had not been conducted. There is an interim order in place against the Applicant with the Respondent and the children listed as protected persons.
On 10 May 2019, the Applicant filed his application in this Court. He sought orders, at that time only, in respect of property matters.
On 31 May 2019, the Applicant filed an amended application seeking parenting orders.
On 19 July 2019, following the conduct of a Child Inclusive Conference under section 11F of the Act, interim orders were made by consent which, among other things, provided for the children to live with the Respondent, but to spend supervised time with the Applicant for two hours per week.
On 31 January 2020, further interim orders were made by consent. These orders provided for the children to live with the Respondent, and to spend each Tuesday evening, and each alternate Sunday, with the Applicant.
On 13 May 2020, the Respondent filed an Application in a Case. In that application, the Respondent sought, among other things, that the children spend no time with the Applicant. The Application in a Case was subsequently adjourned in light of the matter being listed for final hearing.
Evidence
The Applicant relied on the following documents: his Amended Initiating Application filed on 31 May 2019, his Financial Statement sworn 27 May 2020, his trial affidavit sworn 27 May 2020, the affidavit of Ms H (the Applicant’s sister) sworn 10 July 2019, the affidavit of Ms J (the Applicant’s mother) sworn 9 July 2019 and two affidavits of Ms K (Case Manager of Family Contact Service) sworn 21 November 2019 and 28 January 2020 respectively.
The Respondent relied on her Response filed on 18 June 2019, her Financial Statement sworn 30 March 2020, her trial affidavit sworn 30 March 2020 and the affidavit of Mr B sworn 30 March 2020.
The ICL relied on the written memorandum from the section 11F Child Inclusive Conference dated 25 July 2019, psychiatric reports of the Applicant and the Respondent contained within the affidavit of Dr L affirmed 29 January 2020, and the Family Report prepared by Consultant Ms M dated 11 March 2020.
The Applicant, his mother and sister were cross-examined. The Respondent and Mr B were cross-examined. Consultant Ms M was also cross-examined. Ms K, Consultant Ms N and Dr L were not required to be cross-examined.
In addition to the above, the parties filed with the Court, consistently with the Court directions, a statement of agreed facts (referred to earlier), a chronology, a joint table of assets and liabilities and a Court Book.
The applicable standard of proof in these proceedings
The Respondent makes a number of serious allegations against the Applicant. This raises the question of the applicable standard of proof in these proceedings.
Section 140 of the Evidence Act 1995 (‘Evidence Act’) deals with the standard of proof in civil matters. Subsection (1) provides, among other things, that the Court must find the case of a party proved, if it is satisfied that the case has been proved on the balance of probabilities. Further, subsection (2) sets out the matters that the Court may take into account in deciding whether it is so satisfied.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, the High Court discussed how clear evidence is required to prove a serious allegation against a party. The High Court stated at pages 449 – 450:
‘The ordinary standard of proof required of a party who bares the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.’ (citations omitted)
Parenting matters
Contentions and Issues in dispute
The Applicant sought an order for equal shared parental responsibility. The principal contention of the Applicant was that the children enjoy a meaningful relationship with him and that he ought to be permitted to continue to build and develop that relationship. He sought orders that expanded the time he presently spends with the children. In summary, his position was that the children continue to live with the Respondent and spend time with him every second weekend from Friday evening until Monday morning, and also time each alternate week from Tuesday after school until Friday morning.
The Respondent sought an order for sole parental responsibility. She sought an order that the children live with her, and spend no time with the Applicant, except by written agreement. She also sought an order that the surname of each child be changed to ‘B’. The Respondent’s domestic partner is Mr B. The Respondent has taken his name. She is not yet married to him. The Respondent confirmed under cross-examination that she was pregnant with his child.
The Respondent sought the orders above on the basis that she had been subjected to family violence during the relationship, some of which was witnessed by the children, and that the Applicant had been reckless in respect of his care of the children and had denigrated the Respondent in the presence of the children.
The Independent Children’s Lawyer (‘ICL’) sought orders that would see the children spend substantial and significant time with the Applicant. The ICL proposed a build-up of time which ultimately resulted in the children spending every alternate weekend from after school on Friday to the commencement of school Monday, as well as overnight Tuesday in the intervening week.
A number of key factual issues emerged during the hearing and from the material filed. I deal with each one of them below.
Family violence by the Applicant toward the Respondent
Various specific instances of family violence were raised by the Respondent in the course of the hearing.
The alleged sexual assaults and physical abuse during the relationship
The Respondent makes various allegations that the Applicant sexually abused her during the relationship. These include an incident in 2013, two incidents in 2017, and an incident in 2018 when she says the Applicant attempted to force himself on her. She says that she reported these incidents to the Region O Sex Crimes Unit on 8 May 2019. She says she has elected not to pursue the charges and has instead chosen to focus on these proceedings. The Applicant denies the allegations.
There is little doubt that the allegations contained in the Respondent’s affidavit are allegations of the most serious kind. The alleged incidents occurred in private. There were no witnesses to the events.
The Respondent submitted that a series of text messages sent by the Applicant to her following one of the incidents above corroborates her account that she was forced to engage in sexual relations without consent. The text messages are contained at Court Book 258-259. In those messages, the chain of messages starts with a query from the Applicant as to where the Respondent is. The Respondent replies to the effect that she hopes the Applicant’s day is better and signs off with a kiss. The Applicant then asked her whether he is part of her future. The Respondent replies ‘very much so’. The Respondent then raises the issue of sex, indicating that, among other things, she has had zero interest in sex of late. The Applicant then says that he feels ‘a long way on the outside’. The Respondent then apologises by stating that she is not doing it on purpose, she just likes her space. The Applicant then says, among other things, ‘I know I’ve forced it on u a couple times I just can’t resist ‘cause how I feel, cause I want in’. Much emphasis was placed by the Respondent on this particular message. The Respondent replies to the effect that she is glad the Applicant is still attracted to her and that it is her sex drive.
The text message exchange above was put to the Applicant in cross examination. He denied it was an admission that he had forced the Respondent to have sex against her will. He said, in effect, that his comments about feeling on the outside, and wanting in, relate to topics broader than just the sexual relationship between the parties.
In my view, the text message exchange to which I have referred does not corroborate the Respondent’s claims to have been sexually assaulted, or forced to have sex against her will. It can be seen, from the context of the chain, which appears to have been initiated by the Applicant, that he is concerned as to the Respondent’s whereabouts and concerned about his place in the relationship. It is she, the Respondent, who raises the issue of sex, which prompts the Applicant to say that he feels ‘a long way on the outside’. Up to this point, the Applicant is talking about the state of the relationship generally. The next text message from the Respondent is an apology that makes no mention of the sexual relationship and simply seeks to provide comfort to the Applicant. It is then that his comment, upon which so much emphasis was placed is made. That comment falls far short of any admission. It might be that he is discussing his view of the relationship and wanting to be in it. It could also be that he is talking about forcing himself in a sexual manner upon her. It is notable that she says nothing in the text message about withholding consent. It is also notable that her messages to him display a warmth, including signing off with a kiss on one of them.
There is then the text message sent by the Respondent to the Applicant in October 2018 (Court Book 188). In that text message, the Respondent states ‘you were a terrible husband. The only way you could have been any worse would have been screwing every chick you could while we were together or physically abusing me’. The Applicant contended that if he had committed the sexual assaults upon the Respondent, the text messages would not have referred to the matters above, but would have been quite different.
The Respondent sought to explain the text message by stating that she did not appreciate what sexual abuse or controlling behaviours were until she spoke to the police in 2019. It may be that the Respondent may not have completely understood the distinction between terms commonly used in this jurisdiction, for example, coercive or controlling behaviour. However, I am far less convinced that she would not understand what is meant by a term such as physical abuse. The encounters she describes, while sexual, also have a manifestly physical aspect to them. The Respondent appeared before me and presented as a capable and intelligent individual. In my view, the message of October 2018 from the Respondent to the Applicant is strongly suggestive of the Applicant not having sexually or physically abused the Respondent.
The Respondent has not produced any other contemporaneous record or corroborative evidence to support her version of the events. There is no medical evidence before the Court in relation to the assaults. The Respondent did not report the assaults to the police at the time they were made. While a later report has been made, it appears that the Applicant has not been charged by the police in relation to any of the allegations made by the Respondent. There is no evidence of the Respondent disclosing, what are very serious matters, to family or friends.
It is understandable that a victim of family violence may not report abuse to family or friends or authorities at the time of the incident. It is well known that victims often do not feel safe reporting abuse, or may feel shame by telling their friends and family members. I am sensitive to these aspects of family violence and that this may have been a factor for the Respondent in her non-reporting of the alleged assaults.
However, when the strength of the evidence is considered, it does not rise to a level that enables me to make a finding that the conduct that is alleged occurred.
Coercive and controlling behaviour during the relationship and post separation
There are then the Respondent’s allegations that the Applicant used coercive and controlling behaviour during the relationship. She alleges that the Applicant, among other things, flipped a coffee table in the house, criticised what she wore, swore at her on multiple occasions, taunted her about her weight, was angry, was not supportive when she went into labour with the children, shamed her for not agreeing to have sex, complained about her cooking, and threatened to kill her. The Respondent also alleged that the Applicant urinated on her on multiple occasions.
There are two specific allegations that were made by the Respondent that were not denied by the Applicant. The first is that the Applicant called the Respondent a ‘prostitute’ and a ‘stripper’ post separation in November 2018. The second is that he called the Respondent a ‘cow’. I accept that this conduct occurred and I accept that it constitutes abusive language directed by the Applicant toward the Respondent.
Much of the conduct alleged by the Respondent occurred in private between the Applicant and the Respondent. There is no evidence from anyone else that corroborates these events having taken place. Apart from what I have set out above, the Applicant denied the alleged conduct.
While the Applicant denied the allegations described above, his performance in the witness box was far from convincing. He was at times evasive, and at times argumentative.
The Applicant’s sister, Ms H, gave evidence in the proceeding. She stated that the relationship between the parties was one that was ‘volatile’. She also recounted an incident where the Applicant appeared at her home and she asked him to leave. He refused to leave and the police were called. She denied that her brother was capable of significant aggression, but described him as ‘fiery’.
When the above evidence is considered, I am satisfied that the Applicant abused and belittled the Respondent during the relationship and after its end. I am satisfied that he displayed anger towards her. It is clear from the Applicant’s own sister that the Applicant has a propensity towards anger, and that his behaviour caused her to distance herself from him. The text messages sent by the Applicant to the Respondent in which he referred to her as a ‘prostitute’ are not only proof of such behaviour having occurred, but in my view are demonstrative of the Applicant being a person prepared to use vulgar and abusive language against the Respondent to either coerce her, or to achieve his objectives.
I am not satisfied that the evidence reaches a level to enable me to find that the Applicant urinated on the Respondent as alleged. The allegation is an unusual one, and the fact that it is unusual, alongside its description by the Respondent, suggests it may have occurred. Ultimately, however, this is an allegation of an extremely serious nature and I am not satisfied, on the balance of probabilities, that the allegation is made out. Ultimately, it is an allegation that was firmly denied by the Applicant. There is no corroborating evidence from medical professionals or the police at the time the incidents are alleged to have occurred. The allegation is also inconsistent with the Respondent’s own text message sent to the Applicant in October 2018, which I have referred to earlier.
Alleged family violence post separation
The Respondent also alleged family violence committed by the Applicant following separation. The incident which attracted the most focus during the hearing was an alleged incident that occurred on 4 January 2019. The Respondent alleges that the Applicant was aggressive at the initial changeover that day, and later in the day, he threw a bag at her feet, told her to stop being a ‘bitch’, and threw keys at her head.
The Applicant was questioned about this incident during cross examination. He denied the allegation. His answers on this issue were not convincing and he sought to avoid answering various direct questions.
This incident was raised during the section 11F interviews that occurred on 19 July 2019, and in the Family Report prepared for trial.
Consultant Ms N conducted the section 11F Child Inclusive Conference in this matter. She recorded the following in relation to the children’s observations of the Applicant generally, but also in relation to the incident where the keys were thrown:
‘• X was of the view that she was been interviewed to tell me what happened to her and her brother with “Mr Bickford”. She and her brother were referring to their father as “Mr Bickford” at times. She advised quiet quickly into the interview, he had thrown keys at her mother, slammed a door and used the “f word”. She said when they stayed with him when their mother was away was when he had sworn at her and her brother. Y gave a consistent report to this also, although he said he had seen his father throw keys at his mother and his father had kicked him to wake him up when they were staying with him.
• The children did not report any exposure to other family violence incidents and their reports suggested it was their mother who had advised them about their father’s inappropriate behaviour. They could not place themselves near events, or repeat anything overheard other than what their mother had told them.'
Consultant Ms M prepared the Family Report in this matter. At paragraph 80 of the Family Report, Consultant Ms M recorded that X recalled the incident where her father threw a key at her mother. There is not any observation by Consultant Ms M that she regards X as having been coached.
I find, on the balance of probabilities, that on 4 January 2019, the Applicant behaved aggressively toward the Respondent in front of the children. He swore at her. He threw keys at her. His answers on this issue were not convincing. The children clearly recollect the incident. Further, it is an incident of abuse and I have already made findings that the Applicant abused the Respondent. It appears he has a propensity to act in that way.
The other significant alleged incident of family violence said to have occurred post separation is an incident when the Respondent returned from her trip to Country G in 2019. The Respondent asserts that at changeover on her return, the Applicant tried to grab her, before jumping in his car and reversing directly towards her and the children, before skidding away. The Applicant denied the incident.
The Respondent’s account is to some extent supported by the account of Mr B. He confirms an attempt by the Applicant to grab the Respondent, and he also confirms the car speeding in reverse toward the Respondent and the children, the skidding of the car tires and the speeding away.
There is some inconsistency between the account given by the Respondent and the account given by Mr B. Mr B provides a more detailed account. I regard this is somewhat surprising, given the Respondent’s detailed recollection of other events, many of which occurred a long time ago. It is not an unusual for there to be differences between accounts of equally compelling witnesses, but I am somewhat surprised that it occurred in the context of a recent event, where Court proceedings were imminent.
Given the Applicant’s denial of the allegations, the inconsistencies in the accounts between Mr B and the Respondent, the election by the Respondent’s Counsel not to cross examine in detail on this issue and the standard of proof to be applied, I am not satisfied that the evidence supports a finding that the incident occurred as alleged by the Respondent.
Alleged controlling behaviour post separation
The Respondent also alleges that she was subjected to controlling and intimidating behaviour post separation. She says that this behaviour, in combination with the behaviour described above, caused her to seek and ultimately obtain an intervention order from the Magistrates Court. The present order from the Magistrates Court is an interim order. A final hearing will take place later in the year.
The Respondent alleges a range of behaviour that has been directed toward her post separation. Putting to one side the allegation of sexual assault which I have dealt with earlier, she alleges behaviours that include the Applicant taunting her about her residing in the Property, becoming or remaining fixated on fixing the relationship, and using the Child Support Agency or the children’s school to harass or control her. She also alleges control through text messages received from the Applicant threatening suicide.
I deal with the last point first. There is little doubt that the Applicant, in text messages, contemplated suicide. It is plain on the evidence that I have seen that the Applicant was devastated that the relationship was over. I am also satisfied that he was upset about the end of the relationship for a long period of time. The presence of Mr B around the Respondent, while the parties were still married, and irrespective of whether they had formally commenced a relationship or engaged in sexual relations, clearly aggravated the Applicant. When this evidence is considered, along with the evidence referred to earlier where the Applicant was seeking reassurance from the Respondent that the relationship would continue, I am of the view that the text messages relating to suicide were sent by the Applicant because he was genuinely in a depressed mood about the state of the relationship. I do not regard those messages, or sentiments expressed by the Applicant about ending his life, as an attempt by him to control the Respondent.
The Respondent pointed to interactions that the Applicant had had with the children’s school and the Child Support Agency in order to demonstrate that the Applicant had sought to use these organisations and their processes to harass, coerce or control the Respondent. The documentary material to which I was taken certainly demonstrates that the Applicant was forceful in asserting what he regarded as his rights. These include his rights to access the children’s educational records, and his enquiries, which appear to have been persistent, to the Child Support Agency in respect of child support.
Ultimately, however, I have come to the view that the Applicant was not seeking to use either the children’s school, or the Child Support Agency to coerce or control the Respondent. In respect of the children’s school, the Applicant sought to have access to his children’s educational performance at a time when the Respondent was slowly distancing the children from him. The queries of the Child Support Agency, while repeated, were queries he was entitled to make, albeit they could have been pursued more respectfully. I accept that to the extent they were more pointed than what they needed to be, they were driven by the Applicant’s despair and hurt at the end of the relationship. I am not satisfied that the evidence enables a finding to be made that the alleged controlling behaviour post separation occurred.
Conclusion: Family violence of Applicant toward the Respondent
I have made findings that the Applicant engaged in family violence toward the Respondent. Those findings include findings that the Applicant has verbally abused and insulted the Respondent, that he taunted her, and that on one occasion, he threw keys at her and abused her. Save for the incident in relation to the throwing of the keys, the other incidents did not occur in front of the children. The key throwing incident did occur in front of the children.
The Respondent’s willingness and capacity to facilitate a relationship between the children and the Father
A central plank of the Applicant’s case is that the Respondent has not, and is not, willing to facilitate a meaningful relationship between the children and him.
In order to consider this issue, it is necessary to revisit some of the history to the matter.
It is broadly agreed that during the relationship, the Respondent was the primary carer of the children while the Applicant focused on work (albeit the Applicant says he assisted with the care of children during this time). It also the case that at various times during the relationship, the children were left in the sole care of the Applicant while the Respondent took time to holiday with family or friends.
Post separation, it appears that the parties were able to manage the parenting arrangements between themselves, albeit not without some tension. The arrangement was such that up until March/April 2019, the Respondent was comfortable enough to leave the children in the care of the Applicant while she holidayed in Country G.
The holiday in Country G, along with correspondence she received from the Applicant’s lawyers at around the same time, appears to have been the turning point for the Respondent. On her return, she unilaterally stopped the children from seeing the Applicant. Her evidence, supported by that of Mr B, is that the children were very seriously unsettled on her return, and made disclosures which caused her to fear for their safety in the presence of the Applicant. The Respondent says the disclosures included marked behavioural changes, bedwetting, vomiting, not wanting to sleep alone and being afraid of monsters. She also gives evidence that one of the children told her that the Applicant had a gun and let the children shoot a fox. These disclosures followed a phone call between the Respondent and the children when she was in Country G, where the Respondent says that she overheard, among other things, the children being yelled at by the Applicant.
The Respondent’s account above needs to be assessed in light of a number of other factors and matters.
First, as noted, the Applicant had retained lawyers during the Respondent’s holiday in Country G. It is apparent that on 1 April 2019, the Applicant’s solicitors had written to the Respondent indicating a desire to formalise parenting arrangements. The receipt of that letter by the Respondent is likely to have come as a surprise to her.
Second, in response to the letter received from the Applicant’s solicitors, the Respondent on her return immediately wrote to the Applicant’s solicitors on 8 April 2019. In that correspondence, she set out a proposal in which the Applicant could spend time with the children for two nights over the first weekend of each month. This offer and its timing is unusual. On the one hand, the Respondent asserts that the children made serious disclosures to her on her return that caused her to fear for their safety. On the other hand, and notwithstanding this, she has nevertheless written to the Applicant’s solicitors with an offer for the children to spend regular overnight time with the Applicant, a person whom she says, in effect, cannot be trusted with the children.
Third, the Respondent describes, among other things, the children being unsettled on her return from Country G. She was away for a period of approximately 16 days. This is a lengthy period for children so young to be away from their primary carer. It is somewhat understandable that children of the ages these children were at that point in time, would be unsettled when their primary carer leaves for a not insignificant period of time. Nowhere in the material to which I was taken, however, has the Respondent countenanced the possibility that one reason for the children being unsettled on her return was because she, as their primary carer, had been absent. Instead, the Respondent apportions all of the responsibility for the reaction of the children at the feet of the Applicant.
There is then the question of the way in which the Respondent and Mr B have dealt with Mr B’s relationship with the children. The Applicant complains that the Respondent has encouraged the children to call Mr B ‘dad’. That complaint is supported by the observations of Consultant Ms M. The failure of the Respondent to address this issue in the presence of Consultant Ms M strongly suggests to me that she is seeking to replace or reduce the role of the Applicant in the children’s lives.
Finally, it is appropriate to have regard to one other feature of this case. The Respondent seeks an order that the surnames of the children be changed to ‘B’. There are a number of observations to be made about this aspect of the orders sought by the Respondent. First, I was not taken to any evidence that supports the proposition that the children’s best interests would be served by changing their surname to ‘B’. Nor was any submission made of any substance as to this issue. Second, the Respondent seeks an order in circumstances where she is not presently married to Mr B. The evidence was that she had changed her own name at the relevant departmental office by deed poll, and that wedding plans are in the works. The Respondent’s actions in adopting the name of her long-term partner prior to marriage are unusual, although I accept that ultimately individuals are free to do what they want. What, however, is extremely unusual is a person in the Respondent’s shoes seeking to change the surname of her children to the name of a person whom she intends to marry, but whom she has not yet married. The factors I have discussed in this paragraph suggest to me very strongly that the Respondent is seeking to reduce, or minimise, the role of the Applicant in the lives of the children.
There are other matters that are relevant to the assessment of whether the Respondent has the capacity to foster a relationship between the children and the Applicant, and whether the Respondent understands the importance of children having a sense of identity with the paternal family. These matters are as follows:
a)the observations of Consultant Ms M in the Family Report that the children were referring to Mr B as ‘dad’ during the interview, but were not corrected by the Respondent or Mr B (despite the existence of court orders which restrain the Respondent from allowing any other person to be referred to as the father other than the Applicant)); and
b)the observation of Consultant Ms M that the Respondent and Mr B did not discourage the children from referring to Mr B as dad ‘indicates that [the Respondent] and Mr B have limited capacity to encourage a sense of identity with the paternal family and the last name’.
There are a number of other allegations made by the Respondent to support her position that, appears to me on the evidence, to be fanciful. For example, the Respondent claims that the children told her that the Applicant had a gun and let them shoot a fox. No such disclosures were made by the children to either Consultant Ms N or Consultant Ms M. The Applicant says he does not have a gun licence. The Respondent also asserts that the children are not fed properly by the Applicant, but once again, this is not borne out by the observations of Consultant Ms N or Consultant Ms M.
I earlier described the Applicant’s evidence, at times, as being evasive. When all of the above matters are looked at, I am of the view that there were aspects of the Respondent’s evidence that were embellished in order to paint a picture of the Applicant as a person who is so unsuitable, and of such risk, that he ought to have no time with the children. The impression I formed from the evidence I have described above of the Respondent was of a person who seems focused on creating a new family unit, and of taking steps to limit or eliminate any involvement by the Applicant in the family unit, including any mention of the Applicant’s name, or of the children being associated with the Applicant, his name, or the paternal family.
When all of the matters above are considered, I am of the view that the Respondent does not possess the willingness, or the capacity, to actively support a relationship between the children and the Applicant, despite what she contended in the witness box. While the Respondent says one thing, her actions appear to be directed to other ends. The Court could have no confidence that if the orders sought by the Respondent were made, i.e. that the Applicant spend time with the children by agreement, that the Respondent would ensure that that occurred.
The expert reports
The psychiatric reports
Both parties attended for psychiatric reports before Dr L. Dr L was not required for cross examination.
In respect of the Applicant, Dr L noted that there was ‘nothing of great significance’ in his psychiatric profile. He diagnosed the Applicant with Social Anxiety Disorder, and Obsessive-Compulsive Personality Traits. Dr L suggested that the Applicant ‘may benefit from working with a psychologist to learn some strategies to manage social anxiety and also to recognise some of the pitfalls as opposed to the benefits of having Obsessive-Compulsive Personality traits, particularly in relationships.’
In respect of the Respondent, Dr L described her as presenting as ‘highly anxious and quite controlling’. He also noted that she was highly ‘anxious and uncomfortable throughout the assessment’. Consequently, Dr L noted that the Respondent would, in his opinion, ‘benefit from working with a clinical psychologist to develop a wider range of strategies to manage emotions and anxiety’. In Dr L’s opinion, he diagnosed the Respondent with Social Anxiety Disorder, and Obsessive-Compulsive and Borderline personality traits.
The 11F Report
The parties attended for a Child Inclusive Conference on 19 July 2019. The 11F Report was prepared a matter of months after the Respondent returned from Country G and after the Respondent claims that the children made concerning disclosures to her. Notwithstanding this, Consultant Ms N recorded the following observation between the children and the Applicant:
‘• Both children reported they wanted to see their father. They said they missed their paternal grandmother and their cousins.
• On observation, the children ran to their father jumped into his arms and gave him hugs. The father became emotional and the children asked him why he was crying. He gained control of his emotions and told them he missed them and was pleased to see them. He then interacted with them in a familiar and comfortable fashion; they showed him pictures and played futsal. The interaction did not seem forced and they all seemed to become more relaxed as the time progressed. The paternal grandmother also spent time with the children and their reactions to her were similar. They ran and hugged her and interacted with her with ease.’
On the basis of those observations, Consultant Ms N recommended that the children commence spending supervised time with the Applicant and that professional supervision occur.
The Family Report
I have already referred in some detail to the content of the Family Report. In addition to the matters that I have referred to above, it is important to record that Consultant Ms M observed that the children had a loving and positive relationship with their father. So much can be seen from the following extracts:
a)X expressing joy when speaking about her father and stating that she loves him to ‘infinity’, and wanting to spend more time with him, albeit not overnight because she would miss her mother (paragraph 81 of the Family Report);
b)Y also stating that he loved his father to ‘infinity’ and wanted to spend more time with him, his nana and his cousins, albeit not overnight because he would miss his mum (paragraph 90 of the Family Report);
c)Both children greeting the Applicant by ‘running up to him and giving him a hug’ (paragraph 95 of the Family Report);
d)X completing a painting which she made for her father which said ‘I love you dad’ (paragraph 97 of the Family Report);
e)the observation of Consultant Ms M that ‘the children were seen to have a positive relationship with their father and showed no signs of fear or distress around him and they appeared comfortable pushing the boundaries. Mr Bickford also presented with appropriate parenting skills to manage their behaviour in a positive manner and was not punitive’ (paragraph 99 of the Family Report).
It must be observed that the tenor of these reports is overwhelmingly positive for the Applicant. The picture painted by both report writers is diametrically different to what the Respondent reports about the children.
The Law
The Act sets out the matters that the Court must have regard to in making a parenting order. Section 60CA of the Act provides that in deciding whether to make a particular parenting order, a Court must regard the best interests of the child as the paramount consideration.
Section 61DA of the Acts contains a presumption in parenting matters that parental responsibility is to be equally shared.
Where parental responsibility is shared, section 65DAA(1) of the Act requires a Court to consider whether the children are able to spend equal time with each parent. Where parental responsibility is shared and the Court does not make an order for the children to spend equal time with each parent, the Court is required to consider whether the children can spend substantial and significant time with the non-resident parent.
Section 60CC of the Act then sets out those matters that the Court must have regard to in ascertaining what is in the children’s best interests.
The primary considerations in relation to what is in the children’s best interests are set out in section 60CC(2) of the Act. Subsection (2)(a) provides that a primary consideration is the benefit to the child of having a meaningful relationship with both of the child’s parents. Subsection (2)(b) provides that a primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. By subsection (2A), the Court is to give greater weight to the consideration set out in subsection (2)(b).
Finally, section 60CC(3) sets out the additional considerations that a Court must have regard to in considering what is in the child’s best interests.
I turn now to consider the above principles in the context of the present matter.
Consideration
Parental Responsibility
The Respondent seeks an order that she have sole parental responsibility for the children. The orders are sought on the basis, among other things, that the Applicant has inappropriately involved the children in adult issues, that he has ignored the children’s needs, and that he has perpetrated family violence.
Section 61C(1) of the Act provides that each of the parents of the child who is not 18 years of age has parental responsibility for the child. Section 61DA(1) of the Act requires a Court, when making a parenting order in relation to a child, to 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.
Section 61DA(2) of the Act provides that the presumption referred to in section 61DA(1) above does not apply if there are reasonable grounds to believe that a parent of a child, or a person who lives with a parent of the child, has engaged in abuse of the child or another child who at the time was a member of the parent’s family, or has engaged in family violence. Section 61DA(4) further provides that 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.
In this matter, I find that the presumption of equal shared parental responsibility has not been rebutted.
Much emphasis was placed by the Respondent on the allegations of family violence. I have detailed my findings earlier in relation to the allegations of family violence and rely on them. Further to those findings upon which I rely, I would add that I have found that only one incident of family violence occurred in front of the children. That was the incident where the Applicant threw keys at the Respondent and swore at her. That incident obviously had an impact on the children – they recollected it. It is, however, a single incident. It is also an incident that occurred in a context where the Respondent was taking steps to establish a new relationship with her partner, and to exclude the Applicant from the children’s lives. I have not made any finding that the Applicant has abused the children or has committed violence upon them. In fact, the evidence points in the other direction. The children have a loving relationship with their father, are pleased to see him, and do not display any of the traits of being fearful of him.
The Respondent also relies on the claim that the Applicant has inappropriately involved the children in adult issues. That appears to be the case, however the evidence is also that the Respondent has inappropriately communicated information to the children.
Finally, I have set out later in this decision, my findings and observations as to what is in the children’s best interests. I rely upon those matters here. I conclude that the presumption of equal shared parental responsibility has not been rebutted. For the above reasons, I will make an order that the parties have equal shared parental responsibility for the children.
Parenting arrangements and best interest of the children
I turn now to consider the children’s best interests. I deal firstly with the primary considerations set out in section 60CC(2) of the Act. I am required to give greater weight to the consideration to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I have made express findings earlier in these reasons in relation to the allegations of family violence. I rely on those findings. Those findings indicate, among other things, that the Applicant has thrown keys at the Respondent on one occasion, and also abused and belittled her. Those findings do not support a conclusion, however, that the children need to be protected from the Applicant.
I am fortified in this view by the following. First, the evidence of Dr L is that there is nothing in the psychiatric profile of the Applicant which demonstrates that he poses a risk to the children. Second, the observations of Ms K from the Family Contact Service which indicated that the Applicant interacted appropriately with the children. Third, the observations of Consultant Ms N and Consultant Ms M, who both observed the children with their father. Those observations were very much that the children enjoyed a positive relationship with their father and importantly, did not display any signs of fear or distress around him. Fourth and finally, that apart from the key throwing incident, the children have not been exposed to any family violence perpetrated by the Applicant.
Turning then to deal with the children having a meaningful relationship with each parent. It is important to observe the dispute between the parties is not one in which the Respondent will lose her role as the primary carer. She will continue in that role. I have, however, made some observations about the capacity of the Respondent to support the paternal relationship. In my view, those findings and observations support a view that parenting orders need to be made which gives to the Applicant time with the children. The Court does not have any confidence that the children will be able to develop a meaningful relationship with the Applicant if the Applicant’s time is subject to the Respondent’s approval. Further, the proposition that the Applicant could continue to maintain or develop a meaningful relationship with these children on the basis of supervised time only is far-fetched, particularly given the costs involved, and particularly given the current circumstances of the global health pandemic which has seen many of these services closed for significant periods of time.
I am required to take into account the views of the children. In R v R (2000) 155 FLR 29, the Full Court had this to say in relation to the weight to be given to the views of the children:
‘54. …There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests’.
Both children are young in age. Accordingly, limited weight should be placed upon the views. Within that construct, and taking into account the guidance from the Full Court in R v R, the Court observes that both children expressed a desire to spend more time with the Applicant, albeit not overnight time because they would miss their mother. It is also important to observe, that in respect of X, Consultant Ms M recorded that X was well aware of the parental conflict, and that she appeared ‘to carry an emotional burden of not disappointing her parents’.
Both children have a meaningful relationship with each of their parents. Consultant Ms M observed that both parents have significant strengths in the relationship that they share with the children. Consultant Ms N observed the Applicant had remained emotionally connected with the children, notwithstanding the disruptions to his time that occurred in the early part of 2019.
It is also apparent from the evidence that the children have enjoyed spending time with the paternal family. Consultant Ms N reported that they missed their paternal grandmother and cousins. The children also made similar comments to Consultant Ms M during the family report interviews. It is of some significance that the children enjoy spending time with their paternal family, and it is important that they continue to have that opportunity.
As has already been noted, the Respondent as the primary carer, has fulfilled, and will continue to fulfil, a range of obligations in relation to caring for the children. She is a central figure in their lives. The Applicant has also sought to be present in the lives of the children. He has had his time with the children professionally supervised, notwithstanding the personal financial cost to him. He has persisted with his application, notwithstanding that the Respondent, having consented to time becoming unsupervised, now seeks to reduce his time to one that is either of no contact unless it is by agreement, or one that requires supervision.
The Applicant has sought to keep abreast of his children’s developments in school. Some criticism was made of him during the hearing about the manner in which he dealt with the school. I accept that the communications from the Applicant to the school could have been more subtly handled, and he should endeavour to do so in the future. I also consider, however, that those communications demonstrate a desire by the Applicant to be involved in the life of his children.
Any order that I might make for overnight time is likely to be a significant step for these children. They have not spent overnight time with their father since March 2019. They have expressed to Consultant Ms M that they do not wish to spend overnight time with the Applicant because they would miss their mother. The change of circumstances will have some impact on the children. However, that needs to be balanced against the fact that for the children to continue to develop a meaningful relationship with the Applicant, they need to spend more time with him.
There is no question that the Respondent is able to provide for the needs of the children. She has done so in her role as primary carer. The evidence is also, however, that the Applicant is able to provide for their needs. So much is evident from the reports of Ms K, the observations of Consultant Ms N and Consultant Ms M, and from the fact that the Respondent had, until recently, entrusted the children to the Applicant’s care.
Finally, it is necessary to consider the existence of any family violence order. The Respondent presently seeks to prosecute a final intervention order, which awaits determination in the Magistrates Court. It is the case that a final order has not been made at this time.
For all of the above reasons, I am satisfied that it is in the best interests of the children that orders be made that the children spend regular time with their father.
Should the children’s time with the Applicant be equal time or substantial and significant time
Section 65DAA(1) of the Act requires the Court to consider whether the children spending equal time with each of the parents would be in the best interests of the children and whether it would be reasonably practicable.
Section 65DAA(2) provides that if the parents are to have equal shared parental responsibility, and the Court does not make an order for the children to spend equal time with each of the parents, the Court must consider whether it is in the children’s best interests for them to spend substantial and significant time with each parent and whether it is reasonably practicable to do so.
I have had regard to the criteria set out in section 65DAA(3), (4) and (5). It is not reasonably practical to order equal time in this matter. The Applicant accepted that his work commitments would prevent that from occurring.
The Applicant did, however, seek substantial and significant time with the children. The concept of ‘substantial and significant time’ is defined in section 65DAA(3). Further, in considering whether to make an order for ‘substantial and significant time’ the Court is required to have regard to, among other things, whether such order would be in the best interests of the children, and would be ‘reasonably practicable’. Subsection (5) of section 65DAA sets out matters the Court is to have regard to for the purposes of determining whether a child spending substantial and significant time, is ‘reasonably practicable’
In my view, this is a case in which it is appropriate and reasonably practicable to order that substantial and significant time between the Applicant and the children occur. The parties do not live far apart. The children enjoy a close relationship with their father which needs to be nurtured. While I have made some findings of family violence against the Applicant, they arose in a particular context, and they did not present any risk to the children. Substantial and significant time is something that is recommended by Consultant Ms M as the ultimate step in a gradual progression of the Applicant’s time.
In reaching this view, I have considered the capacity of the parties to implement such an arrangement, and their capacity to communicate with each other to resolve differences. In my view, any inability of the parties to implement such an arrangement is likely to be alleviated by, among other things, the finalisation of this matter, the making of clear orders, and, to the extent that is possible, ensuring that changeovers occur, as far as possible, at the school gate. To the extent that such changeovers do not occur at the school gate, Mr B will be available to assist with them.
The capacity of the parties to communicate remains largely untested given the polarised positions each brought to this trial. Similarly to what I have said above, however, the finalisation of these proceedings represents an opportunity for the parties to put matters behind them. In my view, now that the matter is finalised, the parties need to do their best to attempt to implement the arrangements which I have set out in the orders. This includes the parties seeking ongoing psychological support. I also intend to order that all communication occurs through an appropriate web based application. These matters, in combination, may go some way to alleviating any ongoing communication issues the parties experience.
Accordingly, the orders I will make will provide, ultimately, for the children to spend time with the Applicant each alternate weekend for three nights, and one overnight period in the intervening week. It will be necessary for there to be a build-up of time prior to implementing this arrangement, in order to familiarise the children with it. Quite apart from the time the Applicant will ultimately spend with the children, there are two advantages to these orders. First, changeovers at school will minimise any communication or conflict issues between the parties. Second, it will give to the Applicant the ability to interact with teaching staff at the schools, and to keep apprised of the children’s progress.
It is also desirable to make orders that ultimately provide for the children to spend equal (or close to equal) time with each parent on school holidays and special occasions. That will provide further opportunities for the children to develop meaningful relationships with each parent.
The children’s surnames
The Respondent seeks an order that the children’s surnames be changed to B, the name of her current partner. As I have indicated previously, I was not taken to any evidence to support such an order being made. Nor was any substantive submission made by Counsel for the Respondent in support of it.
The Respondent, in seeking this order, stated to Consultant Ms M that she wanted to change the children’s surname because the children had asked that they have the same last name as their mother.
In respect of this aspect of the case, the following is relevant:
a)the Respondent only commenced a relationship with Mr B relatively recently. On her evidence, the romantic relationship only arose after separation occurred. Mr B only moved in around May 2019;
b)the Respondent is not married to Mr B. She intends to marry him in the future. She has nevertheless changed her own surname to ‘B’;
c)the Respondent stated under cross-examination that she was pregnant;
d)the evidence suggests that the Respondent very early into the relationship with Mr B formed the view that the children should take his surname. The matter was raised in the Child Inclusive Conference conducted in July 2019, two months after Mr B moved in. Consultant Ms M in the Family Report notes that the Applicant was distressed between April and July 2019, in part because the children were referring to Mr B as ‘dad’. In my view, the children would not have referred to Mr B as ‘dad’ unless they were encouraged to do so, or were permitted to do so, by the Respondent;
e)in the Child Inclusive Conference report, Consultant Ms N made the following statement:
‘• There does not seem to be any reason why the children should change their surname to that of the mother’s new partner. It is reported he has only recently moved into the family home. It is generally reported throughout the literature it is important for children to maintain a sense of identity and belonging in amongst family breakdown. Maintaining their own name and family history is an important part of this and the children are still young and not in a position to give views in relation to this. The children should retain their own name at this point in time.’
f)Consultant Ms M noted when conducting the family report observations that the children referred to Mr B as ‘dad’ and were not corrected about this by either Mr B or the Respondent;
g)In her recommendations, in respect of this issue, Ms M stated that:
‘The children will continue to benefit from maintaining their identity and therefore continuing to keep their last name "Bickford" until they are of an age where they can make reasonable decisions.’
h)the Respondent has not pointed to any evidence from any independent expert that suggests it would be in the children’s best interests for them to change their surname to B.
For all of the above reasons, I decline to make an order that the children’s surnames be changed to B. I am not satisfied that such an order is in the children’s best interests.
I have stepped back to consider the totality of the parenting orders I propose to make. I am satisfied that those orders are in the best interests of the children.
Property
The parties also sought a just and equitable resolution of property matters between them. Notwithstanding their desire for an alteration to respective property interests, very little attention was paid by the parties to this aspect of the proceeding. This has left the Court in the position of having to do the best it can in the circumstances of the case.
Contentions and Issues in Dispute
The principal issues in dispute are as follows:
a)what items are to be included in the asset pool of the parties, and the values attributable to those items;
b)the weight to be attributed to the financial and non-financial contributions made by the parties at the commencement of the relationship, during the course of the relationship and post separation;
c)whether an adjustment is required under section 75(2) of the Act.
In his case outline, the Applicant seeks that the Respondent, among other things, pay to him the sum of $78,216, representing a 60/40 split of property pool in his favour. He also seeks to retain the majority of his superannuation, with a superannuation splitting order occurring from his superannuation to the Respondent in the sum of $8,250.
The Respondent submits that as matters stand, there should be no further division of non-superannuation assets between the parties. The Respondent also seeks an equal division of the parties’ collective superannuation.
The Law
The power of the Court to alter the property interests of parties is contained within the Act.
Section 79(1) of the Act empowers the Court to make such orders as it considers appropriate in altering the interests of the parties to the marriage. The power of the Court under section 79(1) is a power to be exercised having regard to the subsections that follow, and in particular, section 79(2), section 79(4) and consequently, section 75(2).
The provisions set out above have been the subject of extensive consideration by both the High Court of Australia and also by the Full Court of the Family Court of Australia: see Stanford v Stanford (2012) 247 CLR 108 at[35]-[40], [42]; Bevan v Bevan (2013) 279 FLR 1 at paragraphs [73] to [86], [89]. I am required to approach the matter consistently with the principles articulated in these authorities.
When it comes to the assessment of contributions and the approach to be taken, I have had regard to the comments of the Full Court in Dickons v Dickons [2012] FamCAFC 154 especially [23] and [24], and Eufrosin v Eufrosin [2014] FamCAFC 191, and Lovine v Connor [2012] FamCAFC 168 at [42].
I am satisfied that, in this matter, it is just and equitable to embark upon an exercise of determining how the assets between the parties are to be split. The parties have been separated since 2018. The parties themselves have divided the non-superannuation assets between them following separation. The Respondent has re-partnered. The Applicant has also recently re-partnered. It is self-evident that the parties are no longer in a relationship and that there will no longer be any common property available for shared use by the parties.
The Pool of Assets
Prior to the hearing, the parties were ordered to confer and file a joint table of assets and liabilities (‘Joint Table’). A document to that effect was purportedly filed prior to the trial.
The Joint Table filed with the Court sets out various items said to be the assets and liabilities of the parties. At the outset, various issues arose with the Joint Table. A cursory review of the Joint Table reveals that the parties were not in agreement in relation to the values ascribed to assets and liabilities in the Joint Table. A further problem was that the parties were in disagreement as to the value to be given to items which ought to be able to be readily agreed, for example, the amount in bank accounts, yet had failed to include evidence in the form of bank statements. Another issue was that valuations were not included for the various motor vehicles that the parties sought to have included in the pool of assets.
I raised squarely with Counsel for the parties the deficiencies in both the Joint Table and the evidence that confronted me as to the items in the asset pool and their values. Both Counsel assured me at the end of the trial that they would confer and sort it out when or before they filed their closing written submissions. Ultimately, they did not sort it out. Further, it has emerged post hearing that the Joint Table had not in fact been prepared jointly. It appears that the Joint Table was prepared by the Respondent without input from the Applicant. This is a matter that ought to have been raised by Counsel at the outset, but was not. That Counsel failed to deal with the matters identified in this paragraph is of concern. Their failure is a poor reflection on them. The Court is entitled to expect better.
Given Counsel’s failure to sort it out, my Chambers wrote to each of the parties’ representatives after I had reserved my decision. I again pointed out the deficiencies in the material and the closing submissions. I again requested the parties to confer and to provide a joint position to the Court.
Despite being given a second opportunity to clarify matters, the parties failed to confer. Correspondence which the Court received indicates that the Applicant’s solicitor failed to respond to a request to confer that was received from the Respondent’s solicitor. Instead, the Applicant’s solicitor attempted to make further submissions to the Court, notwithstanding that submissions had closed.
In light of that background, I turn to deal firstly with the non-superannuation assets of the parties.
In their closing submissions in chief, each party identified the following assets to be included in the pool. First, the former matrimonial home for which there is a valuation in the amount of $560,000. Second, an amount of $50,000 in a bank account of the Applicant. As there is no dispute about either of these items, or their values based on the closing submissions in chief, I will include both items in the asset pool.
There is then the superannuation assets of the parties. The Respondent took the opportunity extended by the Court post the hearing to provide an updated statement from her superannuation fund as to her current superannuation account balance. The amount in her superannuation fund is $37,758.20. I will include that amount in the asset pool.
The position in relation to the Applicant’s superannuation balance is not clear. In his Financial Statement sworn 27 May 2020, he says his superannuation account totals $67,000. Presumably, that is the amount said to be in the fund on that date. In his trial affidavit also sworn
27 May 2020, he says his superannuation balance totalled $63,000 as at 9 May 2019. No explanation is provided as to the discrepancy between the figures, or why the earlier figure was used in the affidavit. In closing submissions in chief, the Applicant’s solicitor submitted that the Applicant’s superannuation balance was $56,000. Finally, by the time the Applicant and his solicitor had gotten around to filing closing submissions in reply, the submission was that the Applicant’s superannuation balance was $63,000 as at 9 May 2019. It goes without saying that the matters to which I have referred above reflect poorly on both the Applicant and his solicitor.
As I have already noted, I raised the various inconsistencies above post-hearing with the parties. The Respondent clarified matters by obtaining a statement from her superannuation fund and forwarding that to the Court, as I have noted above. The Applicant’s solicitor replied to the Court and relevantly submitted as follows. First, that he was unable to obtain a current superannuation balance for his client due to the restrictions imposed by the COVID-19 pandemic. Second, that the most current information he had in relation to his client’s superannuation balance was received in May 2019. He attached documentation from May 2019 that disclosed a superannuation balance of $63,207.69.
I have considered these explanations and do not accept them. It is plainly absurd that a superannuation balance cannot be obtained because of the pandemic. The Respondent was able to obtain and forward to the Court a balance for her superannuation fund. It is a matter of record that litigation is continuing in this Court and evidence of the type that the Applicant’s solicitor says he is not able to obtain is regularly being obtained by other litigants.
A Court should always be cautious before it criticises the preparation by a party, or the assistance rendered by legal representatives engaged by that party. Not all clients, or lawyers, are easy to work with, and legal representatives can be placed in difficult situations by clients. In my view, however, the state of the evidence and submissions in respect of the Husband’s superannuation account is shockingly poor. I am concerned that the Applicant’s solicitor, an officer of this Court, would proceed to prepare a matter for trial on information that is over one year old, without updating it. I am further concerned that the same officer would then permit affidavit material to be filed, and proceed to make submissions, that apparently bear no correlation to the actual corroborated information he has in his possession.
The Applicant’s solicitor in this matter should regard himself as being on notice that this Court will not tolerate in the future from him a less than competent approach to the gathering of basic evidence, or the making of submissions which may mislead the Court. Representatives in this Court should also remember that they may be ordered to personally pay costs under the Federal Circuit Court Rules 2001 where the Court forms the view that they have, inter alia, failed to prepare proper evidence or information.
Returning to the matter of the Husband’s superannuation balance, in light of the above, the only document I have from the Applicant is one dated May 2019 which verifies a superannuation balance at $63,207.69. I will accept that figure and include it in the asset pool.
I accept the amount of the mortgage against the Property in the name of the Respondent as being $410,000 and will include it in the asset pool.
As I noted, there are a number of other assets in the Joint Table. There is no evidence as to valuations of those assets, and also no corroborating evidence as to the amounts contained in various accounts. As I have noted, the Applicant’s solicitor attempted to make submissions in relation to some of the assets and claim to accept the Respondent’s asserted valuation of those assets after submissions had closed. I will not have regard to those submissions. They did not conform to the request made by the Court. Further, they were made without leave of the Court. The consequence of the above is that I will not include any of these other assets in the asset pool.
As a result of the above, the asset pool available for distribution is comprised of the following assets:
Item
Assets
Ownership
Value
D Street, Suburb E
Respondent
$560,000
Husband’s Savings
Applicant
$50,000
Total Assets
$610,000
Liabilities
Mortgage over D Street, Suburb E
Respondent
$410,000
Total Liabilities
$410,000
Total net non-superannuation assets
$200,000
Superannuation
Applicant
$63,207.69
Respondent
$37,758.20
Total Superannuation assets
$100,965.89
Total pool inclusive of superannuation
$300,965.89
The distribution of assets before the proceedings commenced
The pool of assets above is what remains for division between the parties. The parties themselves took steps to distribute the non-superannuation assets of the parties in August 2018. The evidence points to the following having occurred:
a)there was an amount of approximately $130,000 in cash available in a P Bank offset account. The Respondent withdrew approximately $47,000 from that account. Approximately $22,000 was used by the Respondent to pay out the car loan for the Applicant. The Respondent retained the remaining amount of $25,000. It is not clear what has become of the $25,000;
b)the balance of the $130,000 in cash (being an amount of $82,000-$83,000) was retained by the Applicant. He has since spent some of the money. There is an amount of approximately $50,000 which remains (being the $50,000 that has been included in the asset pool for distribution);
c)seemingly contemporaneously with what occurred above, the parties signed the Agreement;
d)as a result of, or contemporaneously with the events above, the Applicant arranged for the title of the Property, and the mortgage against it, to be transferred to the Respondent’s name only.
Contributions
It is uncontested that the Applicant had $11,000 in his superannuation account at the commencement of the relationship. The Applicant also contended he had $30,000 in savings which he contributed as a deposit toward the purchase of the parties’ first home at F Street. The Respondent disputes this and says the amount contributed by the Applicant as a deposit was more in the order of $15,000. She also says that she contributed $10,000 towards the contents of the home.
I am satisfied that the Applicant’s initial financial contribution to the purchase of the first home at F Street was greater than the Respondent’s contribution. I am also satisfied that the Applicant commenced the relationship with $11,000 in his superannuation account – a reasonably significant sum given the pool available for distribution.
The evidence is that both parties worked during the relationship and made financial contributions to the marriage. It seems likely that the Applicant made the greater financial contribution, given the periods of maternity leave taken by the Respondent.
The evidence is also that both parties cared for the children. I accept that both parties did care for the children. The Applicant, however, concedes that the Respondent has been largely responsible for the children. I regard that as an appropriate concession, particularly in circumstances where he was living in Queensland for a period of time.
In 2013, the Applicant received a substantial inheritance of $92,133. There is not any dispute that he received this amount. That amount was held on trust until 2016. It was ultimately used by the parties as security to obtain a loan for the purchase of the Property. The inheritance therefore was critical to the parties being able to purchase the Property. Without it, the purchase of the Property would not have been able to have been achieved.
Against this, the Respondent’s evidence is that the Applicant retained the proceeds of sale from the parties’ first property at F Street of $50,000, when that property was sold in 2013. The Applicant has not denied that this occurred. The Respondent’s evidence is therefore unchallenged, and I accept it.
In the context of what is a relatively small pool, the inheritance amount of $92,133 is a significant contribution by the Applicant. Not only was it used to assist with the purchase of the Property, but approximately $50,000 of that amount remains in an account of the Applicant. While it is significant, however, in my view that contribution needs to be given less weight, given that the Applicant enjoyed for himself the proceeds from F Street, a property that both parties had contributed to.
The Applicant seeks to make an issue of the fact that the Respondent appears to have spent the $25,000 she received following the parties self-administered distribution of the asset pool in 2018. I do not place any weight on this. The Applicant appears to have spent a similar, if not greater amount, in the same period. It is to be remembered that he received approximately $82,000 in August 2018, and that all that remains now is $50,000.
There are then the events that occurred post separation. I am satisfied that separation occurred in around August 2018. I have reached this conclusion because, first, the Agreement was signed at this time. Second, Mr B gave evidence, which was unchallenged, of seeing the parties out together, with a group, in August 2018.
The evidence relating to contributions post separation suggests that the Respondent has made the greater contributions post separation. Her unchallenged evidence is that she has made all of the mortgage payments on the Property since separation. Further, she has had the primary care of the children in all material respects. The Applicant has spent very little time with the children. These are contributions of some significance by the Respondent.
The Court is required to assess contributions holistically. Weighing up all of the above holistically, I am of the view that the Applicant made the slightly greater contributions, principally because of the inheritance he received, which enabled the purchase of the Property. It is not to be regarded, however, as a significantly greater contribution, given that he took for himself the proceeds of F Street, and given the Respondent’s post separation contributions and her principal care of the children.
Section 75(2) factors
Both parties are reasonably young and in good health. They both have the ability start afresh. Both are employed in ongoing employment and it appears that both have, with reasonable consistency, been employed throughout the relationship. Neither party’s income earning capacity appears to have been unduly affected by the marriage.
A significant factor that falls for consideration is the care of the children. The Respondent will have primary care of the children who are still reasonably young in age.
The Applicant conceded in closing submissions that an adjustment pursuant to section 75(2) of the Act in favour of the Respondent was appropriate, given that she retains primary care of children. I agree that it is appropriate to make an adjustment in favour of the Respondent as a result of her retaining primary care of the children, and those children being very young.
Conclusion
In all the circumstances, I am of the view that the asset pool, inclusive of superannuation, should be divided as 53% to the Respondent and 47% to the Applicant. The appropriate way to achieve this is for the Respondent to make a cash payment to the Applicant in the amount of $28,246.28, and to leave the superannuation balances untouched. While it would ordinarily be desirable to try to achieve some equalisation of superannuation, the fact remains that in this case, the party with the lower superannuation balance needs to make the payment. Further, in my view, the Respondent is young and has enough of her working life ahead of her to build her superannuation balance. Orders should otherwise be made permitting the parties to retain what they have.
The above division will leave the Applicant with approximately $78,000 in cash which consists of his $50,000 in savings and the payment from the Respondent, and his superannuation of approximately $63,000. The Respondent will retain the Property valued at $560,000, the mortgage attached to the Property of $410,000 and her superannuation of approximately $37,000.
I have stepped back to consider the overall split of assets as contemplated by the orders I propose to make. I am satisfied that the orders represent a just and equitable division of the property of the parties between them in the circumstances of this case.
I certify that the preceding one hundred and eighty-two (182) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 15 October 2020
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Family Law
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Civil Procedure
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