BIRMINGHAM & COLWELL
[2019] FCCA 1837
•2 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BIRMINGHAM & COLWELL | [2019] FCCA 1837 |
| Catchwords: FAMILY LAW – Parenting – where father has history of alcohol dependence and ill mental health – whether father’s time with the children should be supervised – whether father poses an unacceptable risk to the children – best interests of the children. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: Robbins & Ruddock [2010] FamCA 35 Stanford v Stanford (2012) 247 CLR 108 |
| Applicant: | MR BIRMINGHAM |
| Respondent: | MS COLWELL |
| File Number: | MLC 5741 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing dates: | 6 and 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 2 July 2019 |
REPRESENTATION
| Counsel for the applicant: | Mr Schmidt |
| Solicitors for the applicant: | Kelly & McHale Family Lawyers |
| Counsel for the respondent: | Mr Hoult |
| Solicitors for the respondent: | Conlan Cummings Lawyers |
ORDERS
Parenting
All previous parenting orders be discharged.
The applicant and respondent have equal shared parental responsibility for the children of the relationship, namely [X] born … 2013 and [Y] born … 2015 (“the children”).
The children live with the respondent.
The children spend time and communicate with the applicant as follows:
(a)until the first week of school in Term 3, 2019:
(i)each Thursday from 7:15am until 5:00pm;
(ii)each alternate Saturday from 9:00am until 5:00pm; and
(iii)each alternate weekend from 12:00 noon Saturday until 5:00pm Sunday with another adult to be present overnight for the first six occasions;
(b)from the first week of school in Term 3, 2019 until the conclusion of Term 4, 2019:
(i)each alternate weekend from 9:00am Saturday to before school or kindergarten on Monday (or 10:00am if a non-school day);
(ii)each week from the conclusion of school or kindergarten on Tuesday (or 4:00pm if a non-school day) to the commencement of school or kindergarten on Thursday (or 10:00am if a non-school day);
(c)during the 2019/2020 summer school holidays:
(i)in week one of a two-week cycle, from 5:00pm on Thursday until 10:00am on Monday; and
(ii)in week two of a two-week cycle, from 5:00pm on Thursday until 5:00pm on Friday;
(d)from the commencement of Term 1, 2020 (in accordance with the term dates at such school as the children or either of them may attend):
(i)in week one of a two-week cycle, from the conclusion of school or kindergarten on Thursday (or 4:00pm if a non-school day) until the commencement of school or kindergarten on Monday (or 10:00am if a non-school day); and
(ii)in week two of a two-week cycle, from the conclusion of school or kindergarten on Thursday (or 4:00pm if a non-school day) until the commencement of school or kindergarten on Friday (or 10:00am if a non-school day);
(e)from 2020, for one half of all school holiday periods by agreement and failing agreement:
(i)during school term holidays in 2020 and each alternate year thereafter, during the first half from the conclusion of school or kindergarten on the last day of term until 6:00pm on the middle Saturday;
(ii)during school term holidays in 2021 and each alternate year thereafter, during the second half from 6:00pm on the middle Saturday until the commencement of school or kindergarten on the first day of term; and
(iii)during long summer holidays on a week-about basis, with the applicant’s time to commence:
A.in 2020 and each alternate year thereafter, at the conclusion of school on the last day of Term 4; and
B.in 2021 and each alternate year thereafter, seven days after the conclusion of school on the last day of Term 4; and
(f)at such other times as the parties may agree from time to time.
The parent with the care of the children facilitate communication between the other parent and the children by videoconference (such as WhatsApp, Skype or FaceTime) or, if videoconferencing is not available, by telephone, at any reasonable time requested by either the children or the other parent and:
(a)until the commencement of Term 3, 2019 as between the applicant and the children, at least twice per week; and
(b)thereafter, at least once during any period of at least two nights spent away from the other parent.
Notwithstanding any other orders herein and irrespective of whose care the children are in at the time, the children spend time and communicate:
(a)with the applicant as follows:
(i)on each of the children’s birthdays and the applicant’s birthday by agreement, and failing agreement:
A.in even numbered years if the birthday falls on a school day, from the conclusion of school or 3:30pm the day prior until the commencement of school or 9:00am on the birthday;
B.in even numbered years if the birthday falls on a non-school day, from 3:30pm the day prior until 2:00pm on the birthday;
C.in odd numbered years if the birthday falls on a school day, from the conclusion of school or 3:30pm on the birthday until the commencement of school or 9:00am the day after; and
D.in odd numbered years if the birthday falls on a non-school day, from 2:00pm on the birthday until the commencement of school or 9:00am the day after;
(ii)on Father’s Day from 6:00pm the day prior to the commencement of school the following day;
(iii)in even numbered years from 3:30pm on 24 December until 3:30pm on 25 December; and
(iv)in odd numbered years from 3:30pm on 25 December until 3:30pm on 26 December;
(b)with the respondent as follows:
(i)on each of the children’s birthdays and the respondent’s birthday by agreement, and failing agreement:
A.in odd numbered years if the birthday falls on a school day, from the conclusion of school or 3:30pm the day prior until the commencement of school or 9:00am on the birthday;
B.in odd numbered years if the birthday falls on a non-school day, from 3:30pm the day prior until 2:00pm on the birthday;
C.in even numbered years if the birthday falls on a school day, from the conclusion of school or 3:30pm on the birthday until the commencement of school or 9:00am the day after; and
D.in even numbered years if the birthday falls on a non-school day, from 2:00pm on the birthday until the commencement of school or 9:00am the day after;
(ii)on Mother’s Day from 6:00pm the day prior to the commencement of school the following day;
(iii)in odd numbered years from 3:30pm on 24 December until 3:30pm on 25 December;
(iv)in even numbered years from 3:30pm on 25 December until 3:30pm on 26 December; and
(v)by telephone or videoconference at least once during each period of two nights or more when the children are with the applicant.
For the purposes of changeover:
(a)all changeovers take place at the children’s school, kindergarten or day care where applicable; and
(b)at all other times:
(i)the applicant shall collect the children from outside the respondent’s residence at the commencement of time; and
(ii)the respondent shall collect the children from outside the applicant’s residence at the conclusion of time.
Both parties are hereby restrained by injunction from consuming alcohol to the extent where their blood alcohol content would exceed 0.05% during any periods where the children are in their care or for a period of 24 hours prior to such time.
Each party shall keep the other informed of their current residential address, email address and contact telephone number and advise the other of any change to these details in writing as soon as practicable and no later than seven days.
Each party shall notify the other of any significant illness or medical condition suffered by the children or either of them within 24 hours, or as soon as reasonably practicable in the case of an emergency, and each party shall be at liberty to attend any hospital in which the children or either of them may be admitted and attend all necessary medical and/or dental appointments.
Each party shall provide all necessary authorisations to the children’s treating medical practitioners to allow both parents to have direct access to the child/ren’s medical records.
Each party shall make available to the other, details of any medication prescribed for the children from time to time so as to enable the other party to administer such medication for the children as prescribed or required.
Both parents, their servants and/or agents shall be and are hereby restrained from denigrating each other in the hearing and/or presence of the children or either of them, including discussing these proceedings with or within the hearing of the children or either of them or allowing any other person to do so.
Neither party enrol the children or either of them in any activity which impinges on the other parent’s time with the children or either of them without first obtaining the consent of the other parent.
In the event that the respondent is unable to personally care for the children outside of school, kindergarten or day care hours for a period in excess of three hours, the applicant be given the first option to care for the children.
Pursuant to section 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.
AND THE COURT NOTES THAT:
(A)Pursuant to section 62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of those orders are set out in Attachment A.
(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
Property
Within 60 days of the date of these orders (“the date”), the respondent pay to the applicant the sum of $38,060 (“the payment”).
Contemporaneously with the payment:
(a)the respondent do all such acts and things and sign all such documents as may be required to transfer to the applicant, at the expense of the applicant, all her right, title and interest in the real property situate at and known as Street C, Town D, (“the Street C, Town D property”); and
(b)the applicant indemnify the respondent against all payments and liabilities pursuant to the mortgage secured over the Street C, Town D property and all apportionable rates, taxes and outgoings of or with respect to the Street C, Town D property of whatsoever nature and kind;
(c)the applicant do all such acts and things and sign all such documents as may be required to transfer to the respondent, at the expense of the respondent, all his right, title and interest in the real property situate at and known as Street G, Town D, (“the Street G, Town D property”); and
(d)the respondent indemnify the applicant against all payments and liabilities and all apportionable rates, taxes and outgoings of or with respect to the Street G, Town D property of whatsoever nature and kind.
In the event that the whole of the payment has not been made by the date, the real property situate at Street Q, Town R (“the Street Q, Town R property”) be forthwith sold altogether out of court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the Street Q, Town R property;
(c)thirdly, so much of the payment as is then outstanding together with interest thereon as prescribed by the Family Law Rules 2001 adjusted monthly from the date to the applicant; and
(d)fourthly, the balance then remaining to the respondent.
Pending the payment or completion of the sale:
(a)the applicant have the sole right to occupy the Street C, Town D property and during such right of occupation, the applicant pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the Street C, Town D property as they fall due;
(b)the respondent have the sole right to occupy the Street G, Town D property and the Street Q, Town R property and during such right of occupation, the respondent pay all instalments pursuant to the mortgage and all rates, taxes and like apportionable outgoings of the Street G, Town D property and the Street Q, Town R property as they fall due;
(c)the parties hold their respective interests in the Street G, Town D property, Street C, Town D property and Street Q, Town R property upon trust pursuant to these orders; and
(d)neither party may encumber the Street G, Town D property, Street C, Town D property or Street Q, Town R property without the consent in writing of the other party.
Liberty is reserved to either party to apply with respect to the terms and conditions of and execution of the sale.
The applicant otherwise retain, to the exclusion of the respondent, all other items of property (both real and personal and including choses-in-action and financial resources) in his name, possession and/or control, including but not limited to:
(a)the Street C, Town D property;
(b)the motorcycle;
(c)the Motor Vehicle J motor vehicle;
(d)the boat and trailer;
(e)the ride-on mower;
(f)his bank accounts and savings;
(g)his superannuation entitlements; and
(h)household contents, personal belongings and effects.
The applicant be solely liable for and indemnify the respondent against any liability in his name or encumbering any item of property which he is to retain pursuant to these orders, including but not limited to:
(a)the mortgage secured over the Street C, Town D property; and
(b)the loan relating to the Motor Vehicle J.
The respondent otherwise retain, to the exclusion of the applicant, all other items of property (both real and personal and including choses-in-action and financial resources) in her name, possession and/or control, including but not limited to:
(a)the Street G, Town D property;
(b)the Street Q, Town R property;
(c)the Motor Vehicle K;
(d)the Motor Vehicle L;
(e)the Shares S;
(f)her bank accounts and savings;
(g)her superannuation entitlements; and
(h)household contents, personal belongings and effects.
The respondent be solely liable for and indemnify the applicant against any liability in her name or encumbering any item of property which she is to retain pursuant to these orders, including but not limited to the mortgage secured over the Street Q, Town R property.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action and financial resources) owned by or in the possession of such party as at the date of these orders;
(b)money standing to the credit of the parties in any joint bank account is to be divided equally between the parties;
(c)each party hereby foregoes any claim 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 thereon; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
AND THE COURT NOTES THAT:
(A)Pursuant to section 81 of the Family Law Act 1975 (Cth) the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
(B)Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
IT IS NOTED that publication of this judgment under the pseudonym Birmingham & Colwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 5741 of 2018
| MR BIRMINGHAM |
Applicant
And
| MS COLWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks orders in respect of both parenting and property matters.
The parties were in a de facto relationship from late 2011/early 2012 until July 2017. They have two children and own three real properties as well as a number of chattels which are the subject of the present proceedings.
The factual background which is set out in more detail below is not substantially in dispute. Similarly, the key issues for determination are relatively confined.
Post separation, the children have lived with the respondent and have had some, albeit limited, time with the applicant. This time has largely occurred in the presence of the applicant’s parents.
The applicant works full time as a public servant. He earns approximately $115,000 per annum. The respondent is a qualified health care worker. She currently works one day per week and earns approximately $22,000 per annum. Prior to having children, the respondent worked full time and earned a similar annual salary to the applicant.
I will deal with the parenting aspects of this claim first and then turn to address the property claims.
Parenting
Background
On the applicant’s case, the parties commenced cohabitation in 2011. On the respondent’s case, cohabitation commenced in … 2012. The child [X] was born on … 2013 and the child [Y] was born on … 2015.
The parties separated in July 2017.
Initially post separation, the children lived with the respondent mother at the former family home at Street G, Town D, and spent time with the applicant father by agreement, generally for one overnight and two day time periods per week.
It is common ground that in or about October 2017, the respondent mother unilaterally changed the arrangements for the applicant father’s time with the children. The reasons for this are explored further below. In any event, the father’s time with the children was limited from this time on to two daytimes only per week with such time to be supervised by the paternal grandparents.
The father initiated these proceedings in May 2018 seeking additional time with the children and an order that such time be unsupervised.
The mother filed a response in June 2018, in which, among other things, she sought that the father be psychiatrically assessed and attend various other programs to address her concerns about his alcohol issues and his mental health.
Although no orders were made specifically requiring it, the father underwent a psychiatric assessment by Dr B, a psychiatrist nominated by the mother. In September 2018, the father also voluntarily attended UnitingCare Town M’s alcohol and drug treatment counselling and completed a post separation co-operative parenting program.
Proposals of the parties
It is agreed between the parties that:
a)they should retain equal shared parental responsibility;
b)the children should live with the mother; and
c)there be spend time arrangements for special days.
The parties differ as to how much time the children should spend with the father and how that time should progress. The parties also differ as to whether the children’s overnight time with the father should be supervised and if so, for how long.
The father seeks:
a)the children’s time with the father progress:
i)immediately to one night per fortnight, plus the current day time; and
ii)then to a four nights per fortnight school term arrangement and half of all school holidays;
b)there be liberal communication with the children and each of the parties;
c)the father’s time with the children not be supervised although he is prepared to agree to an order that another adult be in substantial attendance during the first six overnight periods that the children spend with him; and
d)if the mother is unable to care for the children for any period greater than three hours, the father have first option to care for them.
On the other hand, the mother seeks:
a)the children spend no more than two nights per fortnight with the father, plus some day time, during school term periods;
b)the children spend three nights per fortnight with the father during all school holidays until the 2021/2022 long summer holidays;
c)from the 2021/2022 long summer holidays, the children spend half of all school holiday periods with the father;
d)the father’s overnight time with the children remain subject to:
i)the father undertaking certain works at the Street C, Town D property[1];
ii)the father obtaining a certificate of occupancy for the Street C, Town D property; and
iii)such time being supervised by either paternal grandparent until such time as [Y] commences secondary school;
e)the father’s overnight time be suspended in the event either of the paternal grandparents are unable to supervise such time; and
f)the father be restrained by injunction in relation to various matters, including smoking, firearms and medications.
[1] This is the property the applicant currently resides in.
Issues
The key issues for determination by the court in relation to the parenting aspect of this matter are:
a)what time the children should spend with the father;
b)where such time is to occur;
c)whether any or all of that time should be supervised; and
d)if supervision is appropriate, for what period of time should such supervision be ordered.
In determining these matters, the court must consider whether the mother’s concerns about the father’s mental health, alcohol dependence and the state of his home are such that the limitations sought to be imposed are in the children’s best interests.
Evidence
The mother seeks to limit the amount of time the children spend with the father and how that time is to be spent. The basis for these restrictions are said to arise from her concerns about the father’s history of alcohol use, his mental health and the physical state of his home.
I will address the evidence in relation to each of these matters in turn. Before doing so however, I make the following comments about the applicable standard of proof required in a matter such as this.
Section 140(1) of the Evidence Act 1995 (Cth) provides that a court must find the case of a party proved ‘on the balance of probabilities’. Subsection (2) further provides that without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is required to consider:
a)the nature of the cause of action or defence; and
b)the nature of the subject matter of the proceedings; and
c)the gravity of the matters alleged.
To the extent that the mother seeks that the father’s overnight time with the children remain supervised for the next ten years, she does so on the basis of serious allegations about the father’s capacity to act in the children’s best interests. The gravity of these allegations must be taken into account in considering whether the mother has established her case to the requisite level. Of course, these matters must also be balanced against the nature of the proceedings, which require the court to balance competing considerations including ensuring the safety of the children subject to any orders.
I have applied these provisions in reaching my findings in this matter.
Alcohol abuse
The mother’s evidence is that she and the father first commenced a relationship in 2000 but then separated in 2006. Her evidence is that the first separation was due, in large part to the father’s ‘severe depression and alcohol abuse’.[2]
[2] Affidavit of the mother affirmed and filed 22 November 2018 at paragraph 5.
She states that they remained in contact and on good terms after their first separation and ultimately resumed their relationship in … 2012 when they commenced cohabitation.
The mother gave evidence that the parties’ relationship deteriorated in the last two years prior to separation and during that time, the father’s alcohol abuse increased significantly. The mother states that she would often smell alcohol on the father’s breath when he came home from work and that he would lie about his alcohol use and smoking.[3]
[3] Affidavit of the mother affirmed and filed 22 November 2018 at paragraphs 6(c) and (d).
The mother further deposed that the father smoked marijuana on Boxing Day in 2015.[4] In response to this, the father concedes that he was offered marijuana and used it on that occasion, that he was open about this with the mother and that it was a one-off event. I prefer the father’s evidence in relation to this issue.
[4] Affidavit of the mother affirmed and filed 22 November 2018 at paragraph 6(b).
In addition, the mother attests that the father became verbally abusive towards her and physically intimidated her during this turbulent period. She specifically referred to incidents:
a)in September 2016 where the father swore at her in front of the children;
b)also in September 2016 where the father dropped a smoothie on himself, swore and threw the blender into the kitchen sink; and
c)on 17 July 2017 when the father yelled at her whilst standing over her causing her to fear that he would hit her.[5]
[5] Affidavit of the mother affirmed and filed 22 November 2018 at paragraph 6(e).
The mother also deposed that both prior to and after separation, the father lied to her about his alcohol consumption and she regularly found empty beer cans in his car. She produced photos of some instances where she observed various beer cans at his home.[6]
[6] Affidavit of the mother affirmed and filed 22 November 2018 at annexure C3.
The mother also gave evidence that after separation, she found painkillers, anti-inflammatory medication and a scalpel blade in the ensuite bathroom drawer which the children could access easily.[7]
[7] Affidavit of the mother affirmed and filed 15 June 2018 at paragraph 28.
The mother also states that she spoke to the paternal grandfather, who is a retired counsellor, about her concerns about the father’s drinking and mental health issues.[8] The paternal grandfather also filed an affidavit in these proceedings on 5 November 2018 where he deposes that whilst he did have a discussion with the mother about her concerns about the father’s alcohol use and his state of mind, the mother had misinterpreted some of his comments.[9]
[8] Affidavit of the mother affirmed and filed 22 November 2018 at paragraph 27.
[9] Affidavit of Mr A affirmed 11 September and filed 5 November 2018.
The mother’s counsel did not seek to cross-examine the paternal grandfather about his evidence. In those circumstances, I prefer the paternal grandfather’s evidence in relation to what occurred during this conversation. I am satisfied that:
a)the mother raised concerns with the paternal grandfather about the father’s drinking;
b)the paternal grandfather agreed that he too had noticed some erratic behaviour which was not consistent with the father’s usual behaviour and therefore took the mother’s concerns seriously;
c)he spoke to the mother in the same way that he had spoken to many distressed partners of alcoholics when he worked as a counsellor, although he was not speaking specifically about the father;
d)he told the mother:
i)that she could not ignore the problem;
ii)the person with the problem had to be confronted and encouraged to seek help;
iii)the sooner this was done, the better the outcome;
iv)the paternal grandfather told the mother that whether the father was receptive to any discussion with him about her concerns was outside her control; and
v)in response to the mother’s query regarding suicidal ideations, the paternal grandfather explained that her responsibility was to protect herself and the children and this too was not within her control.
The paternal grandfather also gave evidence, which is unchallenged, about his observations of the father’s time with the children which he has been required to supervise pursuant to interim orders made on 4 July 2018.[10] Importantly, the paternal grandfather states:
I have not observed Mr Birmingham drinking at all when with us. He does not touch any alcoholic drinks during his time with the boys. Even at family social events he has not had a drink when he has had the responsibility for [X] and [Y].[11]
[10] As amended on 17 September 2018.
[11] Affidavit of Mr A affirmed 11 September and filed 5 November 2018 at paragraph 18.
The father completed alcohol and other drug treatment through UnitingCare Town M attending four sessions between 2 September 2018 and 14 September 2018.[12] The report of his attendance contained the following observations:
Mr Birmingham engaged to a high level during appointments and presented consistent information around past and current AOD use. …It is the writer’s assessment Mr Birmingham presents with low levels of potential risks around alcohol...
At this stage, he has completed a standard unit of AOD counselling and it is the writer’s assessment that no further AOD interventions are needed at present. Mr Birmingham is aware he can engage UnitingCare Town M services in the future if needed.[13]
[12] Affidavit of the father affirmed 11 February and filed 5 November 2018 at paragraph 20(a).
[13] Affidavit of the father affirmed 11 February and filed 5 November 2018 at annexure B-1.
It is apparent that in addition to dealing with the difficulties in the parties’ relationship over the period from 2015 to 2017, the father was also dealing with workplace issues including an inquiry arising from an ‘escaped burn’, a workplace restructure and the illness and hospitalisation of [Y] shortly after his birth.
The mother states that after separation, she took the children to a pre-arranged holiday in Queensland.[14] It is common ground that the father did not attend this holiday. It is also common ground that the father’s alcohol usage increased significantly whilst she was away.
[14] Affidavit of the mother affirmed and filed 22 November 2018 at paragraph 16.
The mother has also expressed concerns that the father smokes and is concerned that he will expose the children to further risks associated with this.
In response to the mother’s concerns raised in her affidavit material, the father conceded that he has struggled with alcohol issues in the past, including acknowledging that he was binge drinking at various stages of his life. He also acknowledged that the period from 2016 to 2017 was particularly difficult for him and that he did drink to excess during this time. He states however, that he now drinks ‘a few beers a week’ and that he does smoke but not in the presence of the children.[15]
[15] Affidavit of the father affirmed 11 February and filed 5 November 2018 at paragraph 16(a).
As stated above, the father voluntarily underwent an assessment by Dr B, a forensic psychiatrist nominated by the mother. In his report, Dr B noted the father’s disclosure of alcohol use from the age of 17. In particular, Dr B noted that the father:
…stated that in the context of some difficulties at work in September 2017, and then [Y]’s illness, he had several months of increased alcohol use, having for two or three beers per night (sic).
He denied more excessive drinking. He denied any symptoms of tolerance or withdrawal. He denied any alcohol-related incidents or physical health problems.[16]
[16] Affidavit of Dr B affirmed and filed 13 September 2018 at annexure -1.
Dr B noted the mother’s concerns regarding the father’s alleged alcohol and medication abuse and states that he ‘cannot confirm that Mr Birmingham suffers from either.’[17]
[17] Affidavit of Dr B affirmed and filed 13 September 2018 at annexure -1.
At its highest, Dr B does not rule out alcohol or medication abuse, but makes no positive finding of such abuse.
It is clear that the mother does not trust that the father is telling the truth about his alcohol consumption either to this court or to the experts who have given evidence in these proceedings. She is therefore reluctant to accept the assessments conducted on the basis that she feels that they are not based on fact, but rather that the experts have been misled by the father’s lies.
On the basis of the evidence before me, I find that the father did use alcohol to excess in or about 2017. However, on balance, I prefer the father’s evidence that he has since sought help for this issue and is now in control of his alcohol use and further, no longer consuming alcohol to excess.
The father has completed a drug and alcohol program and has been assessed as not requiring any further ongoing treatment through that program. Whilst the mother remains concerned that the father is under-reporting his alcohol use, the paternal grandfather has also given evidence, which I accept, that he has not observed the father to use alcohol when the children are in his care, including at family functions.
Given the paternal grandfather’s extensive previous employment as a counsellor, I accept his evidence in relation to this issue.
The photos of beer cans at the father’s home do not establish the mother’s case. The father has provided an explanation as to why those cans were at his home which is, in my view, plausible.
Mental health concerns
The father concedes that he has suffered from ill mental health in the past and has received treatment. The mother’s case is that the father continues to suffer from poor mental health and is not seeking or obtaining consistent treatment for this. In support of this, she points to his erratic and increasingly threatening behaviour, particularly following separation.
I do not propose to address each and every alleged incident referred to by the mother in her affidavit material. For his part, the father appropriately concedes that there were incidents where the parties’ communications descended into verbal abuse, particularly towards the end of the relationship and post-separation. However, his position is that both parties behaved inappropriately towards each other.
On the basis of the evidence before me, I am satisfied that the parties engaged in inappropriate communication towards the end of their relationship. I am satisfied that the mother used inappropriate language towards the father as did he towards her.
In circumstances where the father felt that he was being prevented from spending time with his children notwithstanding having complied with the mother’s requests for proof that he was of sound mind, a certain level of frustration is understandable.
The mother has also annexed to her affidavit some notes that the father made which she says cause her to question his mental health.[18] The father concedes that these are his notes, but says that they are mere ‘doodles’, were often made in the context of his therapy sessions and do not reflect any illness on his part.[19]
[18] Affidavit of the mother affirmed and filed 15 June 2018 at annexure C2.
[19] Affidavit of the father affirmed and filed 5 November 2018 at paragraph 53.
It is not in dispute that the father attended upon Dr O, psychiatrist in August 2017. The mother’s evidence is that the father moved back in with his parents at about this time ‘due to concerns about his mental health and substance use.’[20] The father concedes that he was living with his parents at this time.
[20] Affidavit of the mother affirmed and filed 22 November 2018 at paragraph 20.
The mother also states that the father was prescribed lithium carbonate tables which she ‘found alarming as (I) know it to be a prescription medication that is prescribed in fairly serious circumstances.’
Dr O was not called to give evidence in these proceedings. Similarly, the father’s treating general practitioner, Dr P also did not give evidence. However, the parties tendered correspondence between Dr P and Dr O.[21] This correspondence contains:
[21] Exhibit C.
a)a referral from Dr P to Dr O dated 17 August 2017 in which Dr P says:
Thank you for seeing Mr Birmingham who has suffered depression for several years ow (sic).
b)letters of report from Dr O to Dr P on the following dates:
i)21 August 2017;
ii)5 September 2017;
iii)19 September 2017;
iv)3 October 2017;
v)16 November 2017; and
vi)21 December 2017.
The father’s evidence was that prior to these proceedings, he was only aware of the 21 December 2017 letter from Dr O which he provided to the mother when requested.[22] The mother subpoenaed the remainder of Dr O’s medical records.
[22] Affidavit of the father affirmed 23 and filed 24 May 2018 at paragraph 16(c).
Notwithstanding that Dr O was not called to give evidence, I am satisfied that it is appropriate to consider the reporting letters, having regard to section 69ZT of the Family Law Act 1975 (Cth) (“the Act”).
It is apparent from the letter dated 21 August 2017 that the father was open with Dr O, not only about the current circumstances which brought him to seek assistance but also about his history, including his feelings as a teenager, how he expressed and dealt with his feelings through binge drinking during his teens and early twenties. Dr O went on to say in that first letter:
Diagnostically, this man has a problematic personality organisation marked by cluster B traits. His difficulties are personality trait, not mental illness state that can be fixed with an antidepressant. He also has alcohol dependence, alcohol-related mood disorder, depressed, and a marital problem. I consider the suicide risk low.[23]
[23] Exhibit C.
In his letter dated 16 November 2017, Dr O says:
… From a psychiatric point of view he remains well… He tells me he had two light beers yesterday, no other alcohol this past week because he’s been working late…
At his request I’ve arranged to see Mr Birmingham in a month. He’s done quite well despite the stressful marital situation he’s in now, and I don’t have much more to offer at this point. I’ll discuss closing his file with him when I see him next.[24]
[24] Exhibit C.
It was in this context that Dr O’s final report dated 21 December 2017 stated:
I reviewed Mr Birmingham today and find him very well…
Mr Birmingham doesn’t need psychiatric care. He’s happy for me to close his file at this point and pass his care back to you. He has run with my directions and followed my guidance to move through a very difficult time, which is not easy. It’s been gratifying working with him. He’s aware that he can come back at any time should the need arise.[25]
[25] Exhibit C.
As stated above, the father also participated in a voluntary psychiatric examination by Dr B, a psychiatrist nominated by the mother. Dr B referred to Dr O’s report dated 21 December 2017 and otherwise relied upon the history provided by the father and the affidavit material filed in these proceedings.
On the basis of that material and his consultation with the father, Dr B concluded that the father:
… has suffered from an adjustment disorder with depressed mood in the context of the illness of his son and difficulties at work;
… does not currently exhibit evidence of that disorder and that is consistent with what his psychiatrist said back in December 2017;
… does not require any current treatment…[26]
[26] Affidavit of Dr B affirmed and filed 13 September 2018 at annexure -1.
Dr B went on to say he did ‘not see any current impediments in terms of his ability to care for the children or any mental health grounds on which that access should be restricted or supervised.’[27]
[27] Affidavit of Dr B affirmed and filed 13 September 2018 at annexure -1.
Dr B was subject to cross examination by telephone. In response to a question from me, the following exchange occurred:
Judge:…in relation to the information that you rely on, is there also… a question about the presentation of the person and whether it’s consistent with what is being reported?
Dr B:Sure. Absolutely. …the whole process of doing a psychiatric assessment is… your history, in terms of what the person tells you and what all of the collateral information tells you, and then the mental state examination, which is… your observations of someone’s mental state. …there wasn’t any abnormality in... his mental state which would support the diagnosis of any significant condition.[28]
[28] Transcript page 74 at lines 9 to 18.
I find that in coming to his conclusions on examining the father, Dr B relied not only on what the father had told him, but also on his own assessment of the father’s presentation.
In relation to the prescription of lithium carbonate, it is apparent from Dr O’s letter dated 21 August 2017 that he prescribed ‘half a tab (125 mg) daily’ at that time. In his letter dated 19 September 2017, Dr O stated:
Mr Birmingham attended my Suburb T rooms today and he seems to be doing well. He has reduced his alcohol consumption to within safe limits. He’s been taking the nutritional supplements I had recommended, and the very low-dose lithium carbonate (125mg) that I prescribed him. Two weeks ago he was able to reduce the Efexor dosage from 150mg to 75mg.[29]
[29] Exhibit C.
There is similar reference to this medication in the additional correspondence from Dr O. It is evident that the father has followed the recommendations of his treating psychiatrist, both in relation to what medication he is taking and also how and when to cease taking that medication. There is no proper basis on which to draw any inference that the father’s condition is somehow particularly serious or unmanageable simply by reference to the fact that he is taking a particular drug in circumstances where that drug has been prescribed by his treating psychiatrist and is being taken in accordance with directions from that treating psychiatrist.
I understand that the mother has concerns about the father’s capacity to parent the children given his history of mental health issues. However, the court has the benefit of information from his treating psychiatrist, albeit not on affidavit, which unequivocally stated that as at December 2017, the father did not require further psychiatric treatment, was no longer on prescribed medication and whilst he might benefit from some psychological support to assist him through the current legal proceedings, was otherwise able to be adequately supported by his general practitioner.
To the extent that the mother relies upon the father’s erratic and verbally aggressive behaviour to support her position, this behaviour was largely historical in that it occurred at or around the time of separation and during a period in which it is common ground that the mother had limited the circumstances in which the father could spend time with his children and his attempts to renegotiate those arrangements were unsuccessful.
On the basis of the evidence before me, I am not satisfied that the father’s history of mental illness ought to preclude him from spending time with his children on an unsupervised basis.
Physical state of the father’s home
The mother gave evidence that the parties purchased the Street C, Town D property with a view to demolish the house on that property and rebuild a new home. She deposes that there are a number of safety risks associated with the property which ought to be considered when determining the location for any time spent between the father and children. The safety risks identified by the mother include:
a)a bee infestation;
b)rotten and damaged veranda roof which is falling down;
c)a dam and lake located approximately 50 metres from the house;
d)a semi-recessed water tank on which the boys play that has a make-shift lid on it; and
e)a filled-in pool that acts like a sump and is a submersion risk.
In response to these risks, the father gave the following evidence:
a)the paternal grandfather has removed the bee infestation;[30]
b)there are a couple of boards on the veranda which are rotten and which he will remove;[31]
c)as for the dam, it is located about 50 meters from the house, does not hold water and is no more than a small puddle;[32]
d)the lake is also approximately 50 meters from the house and has approximately 20 to 30 centimetres of water in the middle;[33]
e)in relation to the tank, the children are not permitted to play on it and in any event, it has a lid over it;[34] and
f)the pool referred to was built in the seventies and according to the father ‘for a long period of time now, it has been a garden bed with roses and other ornamental plants in it…’[35].
[30] Transcript page 15 at lines 27 to 28.
[31] Transcript page 15 at lines 30 to 36.
[32] Transcript page 15 at lines 37 to 41.
[33] Transcript page 15 at lines 43 to 47.
[34] Transcript page 16 at lines 1 to 3.
[35] Transcript page 16 at lines 5 to 8.
In the course of cross examination, the father did concede that at times the lake does have more water in it and that some six or seven years ago, you could ski on the lake.[36] He also stated that part of the fence has fallen down and he could fence that area.[37]
[36] Transcript page 35 at lines 42 to 45.
[37] Transcript page 36 at lines 14 to 20.
Other factors
The mother also states that given the age of the children and the fact that they have not more than one night away from her, any change to the current arrangements ought to be gradual.[38]
[38] Affidavit of the mother affirmed and filed 22 November 2018 at paragraph 30(b).
Family report
Orders were made for the parties to participate in a family report undertaken pursuant to section 62G of the Act. Mr N prepared the family report in this matter.
Relevantly, Mr N made the following observations:
…(the father) conceded that there had been verbal aggression in the course of his relationship with (the mother) and that he had been depressed and had abused alcohol around the time of separation. His account showed that he felt these problems had been largely situational and that they have been raised in the context of parenting discussions…[39]
My overall sense was of a father who simply wanted matters to settle between him and (the mother) so that each of them could move on and have good relationships with their children. I am not sure he gives sufficient weight to how difficult this might be for someone who had experienced his behaviour as worrying and aggressive…[40]
It seemed to me that there were 2 sub-texts that would need to be resolved before much progress could be made: I think (the mother’s) language sometimes betrays a belief that she should remain in charge of decision-making about what is best for the children and I think this belief is underpinned by a small amount of conflation of her experiences with those of the children…[41]
…my observations of [X] and [Y] with their mother and his (sic) father were unremarkable. I saw no signs of apprehension, withdrawal, acting-out or disruptive behaviour. There was obvious physical affection between the parents and the boys. Both parents managed the children’s behaviour affectionately with easy, direct instructions…[42]
a)Following a brief discussion with the children in the mother’s presence:
…[X] in the main, although [Y] seemed to agree from time to time, agreed that they would like more time with their father and would even like to try sleepovers. Given the circumstances and the boys’ ages I have not attached great weight to these comments, other than that they are in the same general direction as my recommendations which, in turn, are shaped more by what I considered to be the boys’ developmental needs.[43]
[39] Family report prepared by Mr N dated 3 December 2018 at paragraph 4.6.
[40] Family report prepared by Mr N dated 3 December 2018 at paragraph 4.7.
[41] Family report prepared by Mr N dated 3 December 2018 at paragraph 5.5.
[42] Family report prepared by Mr N dated 3 December 2018 at paragraph 6.3.
[43] Family report prepared by Mr N dated 3 December 2018 at paragraph 6.5.
Mr N concluded that the children’s primary attachment is to the mother but that they had a warm and affectionate relationship with their father.[44] Whilst Mr N understood that based on her own experiences during the relationship, the mother believed that the father had not been open and candid with various professionals about his alcohol abuse and mental health issues, he was persuaded by the independent report from Dr B and his opinion that the father did not have any psychiatric condition which precluded him having substantial unsupervised time with the children.[45]
[44] Family report prepared by Mr N dated 3 December 2018 at paragraphs 7.1 and 7.2.
[45] Family report prepared by Mr N dated 3 December 2018 at paragraphs 7.6 to 7.8.
It was on this basis which Mr N made the following recommendations:
a)the children spend four nights per fortnight with the father as at the commencement of the 2020 school year;[46]
b)the parties reach this arrangement on a graduated basis from the current arrangements, including that the first six overnight visits be conducted with another adult present overnight;[47]
c)half school holidays apply from Easter 2020;[48]
d)there be an injunction on either parent consuming alcohol resulting in a blood alcohol limit of over 0.05% while the children are in their care or in the 24 hours prior to the children coming into their care;[49]
e)there be liberal telephone and internet communication;[50] and
f)time on special occasions.[51]
[46] Family report prepared by Mr N dated 3 December 2018 at paragraph 7.9.
[47] Family report prepared by Mr N dated 3 December 2018 at paragraph 7.11.
[48] Family report prepared by Mr N dated 3 December 2018 at paragraph 7.12.
[49] Family report prepared by Mr N dated 3 December 2018 at paragraph 7.13.
[50] Family report prepared by Mr N dated 3 December 2018 at paragraph 7.14.
[51] Family report prepared by Mr N dated 3 December 2018 at paragraph 7.15.
It is the mother’s case that the father’s failure to make full disclosure about his alcohol use to Dr B means that the conclusions reached by him are unsafe as they are not fully informed. Moreover, it is alleged by the mother that the recommendations made by Mr N are equally unsafe given that they in part, rely upon Dr B’s assessment.
Consideration
It is important to note that this case is ultimately one about risk.
The mother’s case is that whilst she accepts that the children enjoy spending time with the father, the risk posed by his mental health issues, alcohol abuse and, importantly from her perspective, his failure to be frank about these issues with medical professionals, the psychiatrist and the family consultant, means that it is difficult to properly assess and address those risks.
For his part, the father says that he has addressed the mother’s concerns. He concedes that he had alcohol issues in about 2017 as well as some mental health issues in 2015-2017 for which he sought treatment and support through his general practitioner and a treating psychiatrist.
He further points to the fact that he has voluntarily submitted to an independent psychiatric assessment as well as having completed a post-separation parenting course and an AOD program to try and assuage the mother’s concerns.
In the course of giving evidence at trial, the father also addressed some of the mother’s concerns about the state of his home and indicated a preparedness to further address any outstanding issues.
The mother seeks that any overnight time spent between the father and the children be supervised by his parents until the youngest child, [Y] is in secondary school. [Y] is currently three years of age. The orders sought by the mother would require ongoing supervision for some ten years or so. Leaving aside the practicality of an order in those terms, there being some evidence led by the father that the paternal grandparents intend to relocate to Queensland at some stage, the question is whether such an order is warranted in the circumstances of this case.
I acknowledge that the mother’s concerns may be genuinely held. I also accept that she will likely feel more comfortable if an order is made in the terms sought by her. However, I am not satisfied on the basis of the totality of the evidence before me that such an order is in the best interests of the children.
I accept that both parties gave their evidence frankly and honestly. I also accept that the mother believes that it is in the children’s best interests to have a positive relationship with their father, but at the same time she genuinely holds concerns for their welfare in his care. However, I am not satisfied that the father’s history of alcohol abuse and ill mental health gives rise to a risk at the level required to justify ongoing supervision for overnight time as sought by the mother. The father has demonstrated both a capacity to seek assistance when required and, importantly, to follow the advice given by his treating specialists, to the point where the specialist held the view that ongoing treatment was no longer required.
Where one parent submits that the children’s time with the other parent must be supervised indefinitely or, as in this case, for a significant period of time, the court must consider whether there is evidence of unacceptable risk to the children in the future if the children’s time with the father is unsupervised.[52]
[52] Robbins & Ruddock [2010] FamCA 35 at [43] to [58] and cases referred to therein.
In this case, whilst there is evidence that both parents have engaged in verbal altercations towards the end of the relationship. In the context of trying to negotiate parenting arrangements, I am not satisfied that the father poses an unacceptable risk based on his historic use of alcohol.
In coming to this view, I have not only relied upon the evidence of Dr B and the written reports from the father’s treating psychiatrist, Dr O but also the observations made by the paternal grandfather, whose evidence in this regard was unchallenged, that he does not consume any alcohol whilst the children are in his care. Moreover, I am satisfied that an injunction on both parents from consuming alcohol to over 0.05% whilst the children are in their care and for 24 hours prior to such care, provides further protection to address the mother’s concerns.
Similarly, I am not satisfied that the father poses an unacceptable risk based on his mental health issues. In coming to this view, I have also had regard to the report by Dr B, the notes of his consultations with Dr O and the fact that the father was open to seeking assistance when he was clearly struggling with the breakdown in his relationship and his inability to see his children on a regular and frequent basis. I have also had regard to the fact that the father’s reaction to a series of other factors in his life at the time, both work and personal, may also have contributed to the mental health crisis that he suffered in 2016/2017. Ultimately, the father’s preparedness to engage in treatment and follow the therapeutic process is to be commended.
Best interests of the child – statutory pathway
Part VII of the Act deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)…
(3)…
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC(1) of the Act relevantly provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I now turn to consider the relevant section 60CC factors.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Both parties agree that it is important for the children to have a meaningful relationship with both parents. From the father’s perspective, he accepts that the children should live with the mother, thereby facilitating a meaningful relationship with her. He wants to spend regular and frequent time with the children to facilitate their relationship with him.
From the mother’s perspective, whilst she wishes to facilitate the children having a meaningful relationship with the father, she is primarily concerned about ensuring that the children are safe whilst in the father’s care.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
As discussed above, the mother’s concerns arise largely from the father’s history of mental health issues and excessive alcohol consumption.
For the reasons set out above, I am satisfied that the father has displayed insight into the problems that he faced and has sought assistance to deal with these issues. Moreover, I am satisfied on the basis of the evidence before this court that he has addressed the issues which led him to use alcohol to excess.
Moreover, an injunction on the parties drinking to a level which would result in being over 0.05% would address any residual concerns that the mother has.
As is evident from my reasoning above, I do not accept the mother’s case that the father is not being honest about his current level of alcohol consumption.
In relation to smoking, the father does concede that he smokes although he says he does not smoke in the presence of the children. There is no evidence to the contrary on this point. I am not satisfied that it would be appropriate to make an order preventing the father from smoking whilst the children are in his care. Not only would such an order be difficult to enforce, but there is no evidence before the court which would suggest that the father would not take appropriate steps to protect the children from being exposed to passive smoking hazards in the same way that he would be expected to protect them from any other hazards whilst in his care.
For completeness, I also note that the mother raises concerns about the father having given his mobile telephone to the child [X] who saw an image of a penis. I accept the father’s explanation of how this occurred. No further orders are required to address this issue.
Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children are very young. Having said this, to the extent that they have views, they have expressed them tentatively to Mr N and indicated that ‘they would like more time with their father and would even like to try sleepovers.’[53]
[53] Family report prepared by Mr N dated 3 December 2018 at paragraph 6.5.
Whilst these views are in no way determinative, they are consistent with the overall view that I have formed that the children have a close and loving relationship with their father which ought to be fostered and encouraged.
Section 60CC(3)(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
It is clear that the children’s primary attachment is to their mother.
They do however, have a warm and loving relationship with their father as observed by Mr N and also as reported by the paternal grandparents, whose evidence was unchallenged.
It is common ground that the children have a positive relationship with the paternal grandparents who have provided supervision during the father’s time with the children.
Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
The father’s evidence is that during the relationship, both he and the mother attended to the children’s needs and spent time with the children. The mother’s evidence is consistent with this at least until about February 2015.
The mother is critical of the father’s lack of consistency post-separation, referring to various occasions during which the father made arrangements to spend time with the children but then did not do so.
The mother has clearly taken the primary carer role post-separation.
For his part, the father says that he has consistently sought more time with the children post-separation and was limited by the various conditions imposed by the mother.
The parties separated in July 2017. The father initiated these proceedings in May 2018 after having attempted mediation.
Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
I refer to and repeat the comments I have made above.
The father pays child support to the mother as assessed.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The orders I make will result in a gradual increase in the children’s time with the father culminating in a four nights per fortnight regime, with provision for special occasions and half of school holidays. Whilst this will result in a reduction in the amount of time the children spend with the mother, in my view it will not detract from the children’s primary attachment to their mother and will facilitate a meaningful relationship between the children and both their parents.
Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There are no relevant practical difficulties in this case.
Section 60CC(3)(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents clearly love their children and have the ability to meet and provide for the children’s needs, both emotionally and intellectually.
Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The children are young. This has been discussed above.
No other factors are relevant.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This factor does not apply in this case.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This factor has been discussed above.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
This factor has been canvassed above.
Section 60CC(3)(k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
There are no family violence orders in relation to the parties in this proceeding.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The prospect of future litigation cannot be ruled out. However, the father’s proposal is less likely to lead to further litigation. It will result in a fairly stable arrangement where the children live principally with the mother and spend four nights per fortnight with the father and ultimately half of all school holidays.
The orders provide a gradual increase to enable the children to become accustomed to the new arrangements.
The mother’s proposal for less time between the father and children and the need for ongoing supervision for any overnight time for a further 10 years is more likely to lead to further litigation from a logistical perspective, as supervisors may cease to be available or the father may wish to revisit his time with the children as they grow older.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
All relevant factors have been discussed above.
Equal shared parental responsibility
Both parties concede that equal shared parental responsibility is appropriate in this case.
Equal or substantial and significant time with each parent
Where the parents have equal shared parental responsibility for a child, subsections (1) to (5) inclusive of section 65DAA of the Act require the court to consider the child spending equal time, or a substantial and significant time, with each parent.
The father’s proposal provides for substantial and significant time with the children.
For each of the reasons canvassed above, I find that the father’s proposal is in the children’s best interests and I therefore make the parenting orders which are set out at the beginning of these reasons for judgment.
Property
Background
It is common ground that at the commencement of cohabitation, the parties each owned some real property and a variety of chattels.
The respondent owned two properties, at least one of which was encumbered by a mortgage and in respect of which she had minimal equity.[54] The mother also owned a car. No independent evidence was placed before the court as to the value of the properties owned by the mother at the commencement of cohabitation. The respondent deposed that one of the properties was unencumbered (Street E, Town F property) and was valued at $255,000 and the other (Street Q, Town R property) was valued at $510,000 and had a mortgage of $489,000.[55]
[54] A property at Street E, Town F, and the other at Street Q, Town R.
[55] Affidavit of the respondent affirmed and filed 22 November 2018 at paragraph 37.
The respondent also gave evidence that she also received rent from each of the properties she owned in the sum of $280 per week for one property and $460 per week for the other.[56]
[56] Affidavit of the respondent affirmed and filed 22 November 2018 at paragraph 40.
In June 2016, the parties purchased the Street C, Town D property where the applicant now resides.
The applicant owned a property at Street G, Town D, which was also encumbered. Again, no independent evidence was put before the court as to the value of that property at the commencement of cohabitation. The respondent asserts that this property was worth approximately $197,500 at the commencement of cohabitation and had a mortgage of $110,000.[57] The applicant deposed that the property was worth about $240,000 and had a loan of $70,000.[58]
[57] Affidavit of the respondent affirmed and filed 22 November 2018 at paragraph 38.
[58] Affidavit of the applicant affirmed 11 February and filed 5 November 2018 at paragraph 21.
Whilst no independent retrospective valuations of any of the properties at the time of cohabitation were provided, the respondent produced relevant bank statements which support the assertion that she had a mortgage of approximately $490,000 at the beginning of February 2012.[59] The respondent also tendered a bank statement from the Commonwealth Bank (“CBA”) which reveals that the applicant’s home loan with the CBA was approximately $110,000 as at 1 January 2012.[60]
[59] Exhibit D.
[60] Exhibit E.
The applicant’s evidence, which was unchallenged is that the respondent’s interest in the Street E, Town F property was sold and the proceeds of sale were used to reduce debt.[61]
[61] Affidavit of the applicant affirmed 11 February and filed 5 November 2018 at paragraph 23.
The applicant’s evidence, which was again unchallenged by the respondent, is that the parties purchased the Street C, Town D property for $380,000 in 2016 and borrowed funds from the bank to fund that purchase.[62]
[62] Affidavit of the applicant affirmed 11 February and filed 5 November 2018 at paragraph 24.
The parties each worked during the relationship and initially earned similar salaries. The respondent took maternity leave around the birth of each of the children and has returned to work one day per week following [Y]’s birth.
Proposals of the parties
As stated, the parties have largely agreed on the pool and the values of the items within the pool.
The applicant’s proposal is that the asset pool be divided in the proportions of 60% to the respondent and 40% to the applicant on the basis of future needs.
The respondent’s proposal is that the asset pool be divided in the proportions of 75% to the respondent and 25% to the applicant on the basis of the respondent’s greater initial contributions and future needs.
Issues
The court is being asked to consider what would be the appropriate adjustment in dividing the assets of the parties in this case. The applicant concedes that an adjustment ought to be made in the respondent’s favour on the basis of future needs. The remaining issues are therefore:
a)whether an adjustment ought to be made to the respondent on the basis of the respondent’s greater initial contribution; and
b)what adjustment ought to be made.
The legislation
Section 90SM of the Act gives the court power to alter the interests of the parties to a de facto relationship in the property of those parties following the breakdown of their relationship. Section 90SM(3) of the Act provides that:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
It is well settled since Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) that the proper approach to an application under section 79 of the Act, which similarly applies to section 90SM in relation to de facto couples, is as follows:
It will be recalled that section 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under this section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under section 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.[63]
[63] Stanford v Stanford (2012) 247 CLR 108 at [35].
The court went on to say:
The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to a marriage and whatever may have been their stated or unstated assumptions about property interests during the continuance of marriage.
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. … What order, if any, should then be made is determined by applying s 79(4) (emphases added) (footnotes omitted).[64]
[64] Stanford v Stanford (2012) 247 CLR 108 at [41]-[42].
In this case, the parties cohabited for approximately eight years and have now separated. Each of the parties owns real property in their respective names. Having regard to the principles in Stanford and in circumstances where both parties seek orders altering their respective property interests, I am satisfied that it is just and equitable to make orders adjusting their property interests on a final basis.
Having come to this view, in considering what orders ought to be made, the court must have regard to the following issues:
a)what are the assets and liabilities of the parties;
b)what assessment is to be made of the parties’ respective contributions, both financial and non-financial;
c)the effect of any proposed order on the income earning capacity of either party;
d)the section 90SF(3) factors, to the extent that they are relevant; and
e)and ultimately, having regard to all of these factors, what, if any, order is just and equitable.
Assets and liabilities
The parties agreed that the following reflected the assets and liabilities as at the date of trial.
Asset
Ownership
Value
Street C, Town D
Joint
$400,000
Street G, Town D
Applicant
$310,000
Street Q, Town R
Respondent
$580,000
Bank accounts
Applicant
$200
Bank accounts
Respondent
$2,000
Motor Vehicle K
Applicant
$36,750
Motor Vehicle J
Applicant
$35,300
Motor Vehicle L
Respondent
$1,000
Boat and trailer
Applicant
$3,150
Motorcycle
Applicant
$3,500
Shares S
Respondent
$1,600
Ride-on mower
Joint
$5,000
Total assets
$1,378,500
Liabilities
Ownership
Value
Street C, Town D mortgage
Joint
($150,000)
Street Q, Town R mortgage
Respondent
($337,000)
Motor Vehicle J loan
Applicant
($35,000)
Total liabilities
($522,000)
Net non-superannuation pool
$856,500
Contributions
I am satisfied on the basis of the evidence before me that the parties contributed equally during the course of their relationship. Initially, they both worked and contributed both financially and non-financially. The respondent then took maternity leave and returned to work on a reduced basis, initially after the birth of [X] and then again after the birth of [Y].
The point of dispute between the parties was whether the respondent made a greater financial contribution at the commencement of the relationship and if so what, if any, adjustment ought to be made in recognition of that contribution.
It is agreed that at the commencement of the relationship, both parties brought in real property, in addition to motor vehicles and some household items. Unfortunately, neither party submitted a retrospective valuation or any other independent evidence as to the value of those properties at the commencement of cohabitation. As set out above, they each provided estimates of the value of their respective properties at the commencement of cohabitation. The respondent has also produced bank statements as to the extent of the mortgage at or about the commencement of cohabitation.
Having regard to the evidence that is available before the court, I am satisfied that the applicant’s property had a mortgage of $110,000 and on his case was worth $240,000, whereas on the respondent’s case was worth just under $200,000. That would mean that the Street G, Town D property had equity in the range of $90,000 and $130,000.
For his part, the applicant says he had no knowledge of the value of the respondent’s properties at the commencement of cohabitation. It is conceded by the respondent that one property had minimal, if any, equity. Her case is that the other property was worth approximately $255,000 and was unencumbered. The respondent also gave evidence which was not challenged that she received rent of approximately $280 per week for this unencumbered property and a further $460 per week for the fully geared property. The evidence is also that when the respondent’s unencumbered property was sold, the proceeds were applied to reduce the parties’ debts. Subsequently, they purchased the Street C, Town D property for $380,000.
Having regard to these figures and doing the best I can on the basis of the available evidence, I find that the property the respondent brought into the relationship must be attributed some value. As it was unencumbered, I am satisfied that the respondent’s contribution at the commencement of cohabitation was greater than that of the husband.
I do not accept the applicant’s submission that the parties made equal contributions at the commencement of cohabitation in this case. Whilst it is not possible to quantify the respondent’s contribution in exact terms, it is a significant factor which needs to be given some weight in determining what orders are just and equitable. Whilst it is understandable that the parties have focused on the parenting aspects of this case, the absence of a retrospective valuation of the Street E, Town F property has limited the court’s ability to properly assess the respondent’s contribution at the commencement of cohabitation.
Effect of any proposed orders on the parties’ income earning capacity
Neither of the proposals have any impact on the parties’ current or future income earning capacity.
Section 90SF(3) factors
The matters to be taken into account under section 90SF(3) of the Act relevantly include:
(a)the age and state of health of each of the parties to the de facto relationship …; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)…
(e)…
(f)…
(g)a standard of living that in all the circumstances is reasonable; and
…
(l) the need to protect a party who wishes to continue that party’s role as a parent;
(m) …
(n)the terms of any order made or proposed to be made under section 90SM in relation to the property of the parties;…
(q)any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship;
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
Both parties are of a similar age and are in relatively good health. In the case of the applicant, notwithstanding his previous mental health issues, these have not inhibited his income earning ability.
The applicant is employed on a full time basis in a senior role and earns in the order of $115,000 per annum.
The respondent is a qualified health care worker. She currently works one day per week and earns $22,000. She clearly has the capacity to increase her hours and derive a similar income to the applicant. The respondent gave evidence that it was her intention not to return to full time employment so she could be around for the children particularly whilst they are young. Her evidence is that she and the applicant agreed to such an arrangement prior to having children, although she appropriately conceded that this agreement occurred when the parties were in a relationship. If the orders sought by the applicant were made, there may be further opportunity for the respondent to increase her working hours.
The respondent has the primary care of the children and, even under the father’s proposed orders, will continue to have the ‘lion’s share’ of the care of the children. The orders sought by the applicant would see him spend four nights a fortnight and half of all school holidays with the children.
As the parties have three properties, on either proposal, there is scope for each of them to retain a home with a mortgage and a car, although if the respondent’s proposal is accepted, the applicant would have to make a payment to the respondent in the sum of some $50,000. At trial, the respondent conceded that procedural fairness had not been afforded to the applicant’s superannuation fund. Counsel for the respondent submitted that an order for a cash payment in the range of between $8,000 and $10,000 in lieu of a superannuation splitting order would be appropriate.[65]
[65] Transcript page 80 at lines 4 to 10.
If the applicant’s proposed orders are accepted:
a)the respondent would retain two properties and the associated mortgage;
b)the applicant would retain one property and the associated mortgage; and
c)the respondent would be required to make a payment to the applicant in the order of $70,000.
The respondent indicated that it is her desire to remain at home for the children at least until such time as they commence school. Indeed, her preference is not to have to utilise before and after school care for the children.
Whilst the orders proposed by the applicant would result in the respondent having to make a payment to him, she would have an investment property at her disposal as well as the family home, which would give her relative flexibility about if and when she wishes to increase her work hours.
The applicant has been assessed and is currently paying child support to the respondent in respect of the children.
In the course of closing submissions, the parties proposed that the court focus its attention on the real property rather than having regard to the chattels in determining what orders are just and equitable in all of the circumstances.
Having said that, the parties concede that orders are required to deal with the transfer of some of the chattels and whilst agreement has been reached in relation to the bulk of the chattels, no agreement was reached in relation to the ride-on mower which is valued at $5,000. No evidence was led in relation to the mower during the trial.
Superannuation
It is not in dispute that the parties’ respective superannuation entitlements at trial were as follows:
Applicant
$146,400
Respondent
$120,000
Total superannuation
$266,400
As stated, it was conceded by both parties that procedural fairness had not been afforded to the applicant’s superannuation fund. If the court were of the view that a superannuation splitting order were necessary to meet the justice and equity requirement of the Act, an alternative would be to make a cash payment to the respondent in lieu of an order equalising superannuation entitlements.
A splitting order to equalise superannuation entitlements would see a base sum of $13,200 paid to the respondent. If a cash payment were made, it was agreed by both counsel that any such payment would be in the range of $8,000 to $10,000 although neither party referred to any authority as to how the court ought to discount the amount payable under this approach. The court has had regard to the fact that unlike a superannuation splitting order, the party receiving a cash payment would get the benefit of that sum now and not as part of their superannuation payout at some future point.
Given the ages of the parties in this case and the fact that they are some way off from being able to access any superannuation entitlements which might result from a splitting order, I am satisfied that a payment of $9,000 would represent a just and equitable payment in lieu of a superannuation splitting order.
However, having regard to the orders which I make adjusting the property interests of the parties, I do not propose making any such order.
Rather, I have taken into account an adjustment in lieu of a superannuation splitting order in determining the overall payment that the respondent should pay the applicant to achieve a 66/34% adjustment in her favour. I have determined that such an adjustment is appropriate based on a combination of:
a)the respondent’s initial greater contribution and her future needs, having regard to the age of the children;
b)her income earning capacity and the applicant’s greater earning capacity; and
c)the cash payment in lieu of superannuation splitting orders.
Conclusion
For each of these reasons, I find that it is just and equitable that the asset pool be divided between the parties in the proportions of 66% to the respondent and 34% to the applicant. I therefore make the property orders set out at the beginning of these written reasons for judgment.
I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 2 July 2019
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